A Feed Called volokhhttps://zapier.com/This feed is powered by Zapier's handy RSS service.Fri, 09 Dec 2016 21:40:18 +0000volokh/feedhttps://feedburner.google.com[Eugene Volokh] Should there be more or fewer immigrants from Muslim countries to the U.S.?http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/09/should-there-be-more-or-fewer-immigrants-from-muslim-countries-to-the-u-s/<div id="attachment_44234" style="width: 970px" class="wp-caption aligncenter"><img class="size-full wp-image-44234" src="http://www.washingtonpost.com/rf/image_960w/2010-2019/WashingtonPost/2016/12/09/Foreign/Images/2016-12-09T104440Z_01_YH06_RTRIDSP_3_NETHERLANDS-WILDERS.jpg" alt="" width="960" /><p class="wp-caption-text">Geert Wilders sits in a courtroom in Schiphol, Netherlands, on March 18. (Michael Kooren/Reuters)</p></div>
<p>&#8220;Should there be more or fewer immigrants from Muslim countries to the U.S.?&#8221; It&#8217;s an important question &#8212; as all questions about immigration are (because when you let in immigrants, you are letting in your future rulers). One can certainly argue that immigration laws shouldn&#8217;t turn on the religion of the immigrants, or on the religion of the majority in the immigrants&#8217; home country. One can indeed argue that the Free Exercise Clause forbids such religious considerations. But one can also argue the opposite; the Supreme Court has generally allowed the federal government <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/08/banning-muslims-from-entering-the-u-s-is-a-very-bad-idea-but-it-may-be-constitutionally-permissible/?utm_term=.91f70a4c1480">extraordinary latitude</a> in choosing who can come into the United States.</p>
<p>And even if the Free Exercise Clause is properly understood as barring such discrimination, the Constitution can always be amended. Answering the &#8220;Should there be &#8230;?&#8221; question would be necessary to deciding whether such an amendment is called for (if an amendment would indeed be required). One way or another, Americans should decide which foreigners they will share the country with.</p>
<p>All this should, I hope, be uncontroversial &#8212; and yet leading Dutch politician Geert Wilders has just been criminally convicted for asking this very question in the Netherlands, with regard to Moroccan immigrants, and suggesting that the answer should be &#8220;fewer.&#8221; From <a href="https://www.washingtonpost.com/world/europe/anti-islam-dutch-politician-found-guilty-of-discrimination/2016/12/09/d651a50a-2eb7-4efc-aeb5-be7e6727d80f_story.html?utm_term=.5cde1e6fcd3e">Friday&#8217;s Post (Karla Adam)</a>:</p>
<blockquote><p>A Dutch court found anti-Islam politician Geert Wilders guilty Friday of insulting an ethnic group and inciting discrimination after he led chants against Moroccans. &#8230;</p>
<p>In March 2014, Wilders sparked outrage at a rally in The Hague after asking supporters whether they wanted more or fewer Moroccan immigrants in the Netherlands.</p>
<p>The crowd chanted: “Fewer! Fewer!” Wilders responded, “We’re going to organize that.” More than 6,400 people filed official complaints to the police, a sampling of which were read out in court. &#8230;</p></blockquote>
<p>Wilders was not fined or otherwise by the court, which said that &#8220;the conviction was punishment enough.&#8221; But future speakers, especially ones who are less politically prominent, have no assurance of such forbearance.</p>
<p>This means that, according to the Dutch government, Dutch citizens aren&#8217;t allowed to forthrightly debate the matter, and to question egalitarian doctrine on the subject. Recall that the Netherlands has a population about one-twentieth of the U.S. population. What to us may be a small wave of immigration may to them be a deluge that fundamentally transforms Dutch culture and society, including the Dutch legal system. Perhaps such changes would be good. Perhaps, even if they are bad, they should not be resisted using in immigration policy. But &#8220;shut up about it, or we&#8217;ll prosecute you&#8221; is not an acceptable answer to people asking questions about what is to be done.</p>
<p>We should also remember incidents such as this when we hear calls for changing American free speech law to track the European model (see, e.g., <a href="http://volokh.com/2012/09/13/prof-peter-spiro-on-why-hate-speech-should-be-banned-and-on-how-it-might-be-done/">here</a>). The Wilders case is precisely what such proposals would lead to &#8212; the Dutch, and Americans, losing the ability to even discuss what is to be done about the future of their countries, when the discussion runs afoul of whatever orthodoxy the government has set up.</p>Eugene VolokhFri, 09 Dec 2016 21:40:18 +00007Y7alk8B0jrEMuum[Eugene Volokh] Fake news and the law, from 1798 to nowhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/09/fake-news-and-the-law-from-1798-to-now/<p>I haven&#8217;t said much about the &#8220;fake news&#8221; debate, largely because so much about it is obvious &#8212; 1) false statements are bad, but 2) various <a href="https://www.bloomberg.com/view/articles/2016-11-23/fake-news-may-not-be-protected-speech">actions (especially by the government)</a> to try to stamp out such false statements can be even worse. Libel lawsuits, and even libel prosecutions, based on lies about particular people (especially private citizens) are allowed, subject to First Amendment safeguards. But lawsuits and prosecutions for lies about the government are forbidden, and I think the same should apply to lies about current events, history, science and the like (at least so long as no particular person or business is targeted). It&#8217;s not that the lies are constitutionally valuable as such, generally speaking; but threatening to punish them unduly deters even true statements, as well as expressions of opinion.</p>
<p>Private action is more complicated: On one hand, services such as Facebook (and, especially, Google) might perfectly reasonably want to help screen out false news stories, just as a service to their clients, most of whom would presumably prefer seeing true stories instead of false stories; indeed, the job of various news services is to do precisely this. On the other hand, and again obviously, if Facebook wants to embark on such a project, many people will naturally worry that it&#8217;s doing this in an ideologically biased way, which would make the platform less credible.</p>
<p>But let me offer a couple of tidbits from American history that, I hope, will be a bit less obvious.</p>
<p>1. Congress&#8217;s first brush with the &#8220;fake news&#8221; problem, of course, happened in 1798, with the Sedition Act, which among other things purported to punish &#8220;malicious&#8221; falsehoods about the government. That is generally thought not to have worked out so well, partly because it was, unsurprisingly, enforced in a partisan way and <a href="http://volokh.com/posts/1251143893.shtml">was used to suppress opinions with which the government disagreed</a> as well as outright knowing falsehoods. But there&#8217;s a quote that I particularly like from that era, from <i>Case of Fries</i>, a 1799 case in which Justice Iredell addressed the jury in a treason trial flowing from the Fries Rebellion:</p>
<blockquote><p>Ask the great body of the people who were deluded into an insurrection in the western parts of Pennsylvania, what gave rise to it? They will not hesitate to say, that the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved. In consequence of such misrepresentations, a civil war had nearly desolated our country, and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels, and among other causes made necessary a judicious and moderate land tax, which no man denies to be constitutional, but is now made the pretext of another insurrection.</p>
<p>The liberty of the press is, indeed, valuable &#8212; long may it preserve its lustre! It has converted barbarous nations into civilized ones &#8212; taught science to rear its head &#8212; enlarged the capacity &#8212; increased the comforts of private life &#8212; and, leading the banners of freedom, has extended her sway where her very name was unknown. But, as every human blessing is attended with imperfection, as what produces, by a right use, the greatest good, is productive of the greatest evil in its abuse, so this, one of the greatest blessings ever bestowed by Providence on His creatures, is capable of producing the greatest good or the greatest mischief. A pen, in the hands of an able and virtuous man, may enlighten a whole nation, and by observations of real wisdom, grounded on pure morality, may lead it to the path of honour and happiness. The same pen, in the hands of a man equally able, but with vices as great as the other&#8217;s virtues, may, by arts of sophistry easily attainable, and inflaming the passions of weak minds, delude many into opinions the most dangerous, and conduct them to actions the most criminal&#8230;.</p>
<p>[C]an it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? It is believed no government in the world ever was without such a power&#8230;. Combinations to defeat a particular law are admitted to be punishable. Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment &#8212; why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it?</p>
<p>It is said, libels may be rightly punishable in monarchies, but there is not the same necessity in a republic. The necessity, in the latter case, I conceive greater, because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust.</p></blockquote>
<p>A perfectly sensible argument, it seems to me, though one that I think our law has rightly rejected.</p>
<p>2. Congress also banned &#8220;willfully conveying false reports and statements with intent to promote the success of the enemies of the United States&#8221; during World War I. <i>Schaefer v. United States</i> (1920) stemmed from a conviction under that statute; there too, it seems to me, the attempt to punish fake news was quite troublesome. Here is a passage from the close of Justice Brandeis&#8217;s partial dissent, joined by Justice Holmes:</p>
<blockquote><p>The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men not merely for disloyal acts but for a disloyal heart; provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason&#8230;. To hold that such harmless additions to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution will doubtless discourage criticism of the policies of the Government. To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities.</p>
<p>Nor will this grave danger end with the passing of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.</p></blockquote>
<p>3. There is one area where the government does purport to regulate &#8220;fake news&#8221; &#8212; the Federal Communications Commission <a href="https://www.law.cornell.edu/cfr/text/47/73.1217">broadcast hoax</a> regulation, applicable to licensed TV and radio broadcasters:</p>
<blockquote><p>No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if:</p>
<p>(a) The licensee knows this information is false;</p>
<p>(b) It is forseeable that broadcast of the information will cause substantial public harm, and</p>
<p>(c) Broadcast of the information does in fact directly cause substantial public harm.</p>
<p>Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.</p></blockquote>
<p>Fortunately, this provision has been used quite sparingly; here&#8217;s a passage from an FCC letter based on the provision, Frank Battaglia, 7 FCC Rcd. 2345 (F.C.C.):</p>
<blockquote><p>This is in reference to the Commission inquiry into the broadcast by Station WALE(AM), Providence, Rhode Island, of a hoax broadcast that one of its on-air personalities. Steve White, had been shot. According to a report from the Providence Police Department, on July 9, 1991, at approximately 5:45 p.m., WALE&#8217;s news director, Thomas Moriarty, announced over the air that WALE talk show host Steve White had been “shot in the head” while outside the station on a break.</p>
<p>According to the police report, Moriarty stated that WALE had been experiencing “frequency problems” at 5:40 p.m., and that Steve White had instructed Moriarty to make this announcement. The police report states that approximately ten minutes later, the station announced that the “shooting” had been a dramatization. In the meantime, the police report shows that several cruisers along with a lieutenant and a sergeant rushed to the scene where they were met by several members of the media who were trying to obtain information about the shooting.</p>
<p>On September 13, 1991, we sent you a letter inquiring as to the details of this broadcast and the surrounding circumstances. According to your reply, and an affidavit of Robert Michael Gray, WALE&#8217;s program director, the following scenario took place on July 9: WALE was off the air from 4:42 p.m. to 5:45 p.m. to service the transmitter. Steve White left the building at 5:30 p.m., instructing Thomas Moriarty that, if the station went back on the air before 5:55 p.m. (the end of White&#8217;s show), to announce that White had been shot while smoking a cigarette outside the station. Moriarty went on the air at 5:45 p.m., announcing that White had been shot.</p>
<p>Gray states that, upon hearing the broadcast, he immediately called the station and told Ken Torres, the producer, to cease the broadcast immediately. When the broadcast continued, Gray claims he shut off the transmitter until Torres agreed to stop the broadcast. According to your response, when Gray turned the transmitter on one minute later, Torres gave a disclaimer, which you claim to have aired every half hour for 30 hours thereafter, then aired the regular 5:55 p.m. newscast.</p>
<p>You state that Gray terminated Torres, Moriarty and White, and that you immediately contacted your Washington, D.C. counsel. (Because you claim that White is no longer an employee of WALE, you did not include an affidavit from him.) You also state that the broadcast was spontaneous, without the approval or knowledge of management, and was not part of the regular newscast. According to your response, WALE received no letters but did receive approximately 10 telephone calls from listeners inquiring into the accuracy of the report. As to remedial efforts, you state that the station called the media to apologize and offered to pay the costs incurred by the Providence Police Department.</p>
<p>The Commission regards broadcast hoaxes as serious violations of stations&#8217; public interest responsibilities. The Commission has recently taken action against licensees whose on-air personnel have knowingly broadcast false reports. See <i>Emmis Broadcasting (KSHE(FM), Crestwood, MO)</i>, 6 FCC Rcd 2289 (1991) ($25,000 notice of apparent liability for violations of the Communication Act&#8217;s prohibition on the transmission of false distress signals); <i>Letter to Radio Station KROQ–FM</i>, 6 FCC Rcd 7262 (1991) (admonition for broadcast of hoax murder confession and subsequent coverup by station employees without licensee knowledge or involvement).</p>
<p>Here, it appears that you neither knew, approved, nor ratified the broadcast of a false announcement that one of your on-air personnel had been shot, and therefore did not abdicate your responsibility to supervise your employees. The episode appears to have been a spontaneous isolated event, orchestrated solely by certain personnel. Further, it appears that you effectuated prompt disciplinary and remedial action.</p>
<p>Nevertheless, the Commission has long viewed the type of deliberate distortion of programming that occurred in this case as inconsistent with the public interest. It is also well established that licensees are ultimately responsible for the actions of their employees. Furthermore, licensees will not be excused for past violations by reason of subsequent remedial action.</p>
<p>Accordingly, North American Broadcasting Co., Inc., licensee of Station WALE(AM), Providence, Rhode Island, IS HEREBY ADMONISHED for broadcasting the type of false and misleading information which violates the Commission&#8217;s general policy requiring licensees to program their stations in the public interest. It is expected that North American Broadcasting Co., Inc. will take such steps as are necessary to assure that such violation is not repeated. This matter is being made a part of WALE&#8217;s permanent record&#8230;.</p></blockquote>
<p>(Recall that the courts have &#8212; correctly or not &#8212; long viewed the government as having much broader authority to restrict speech on broadcast television and radio than in other media. That&#8217;s why the Supreme Court upheld the Fairness Doctrine, before the FCC repealed it, as well as holding that the FCC could ban broadcast of the &#8220;seven dirty words&#8221;; both of these rules would be clearly unconstitutional if applied to newspapers, demonstrations, public displays and the like.)</p>Eugene VolokhFri, 09 Dec 2016 19:03:15 +0000EfOR6JBRLzjYj0mV[Will Baude] The death penalty ‘courtesy’ stay has disappeared alreadyhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/09/the-death-penalty-courtesy-stay-has-disappeared-already/<p>Last night the state of Alabama <a href="http://www.nytimes.com/2016/12/08/us/politics/alabama-ronald-bert-smith-execution-supreme-court.html?smid=tw-share">executed Ronald Smith</a>, and the Supreme Court, by a 4-4 vote, <a href="https://www.supremecourt.gov/orders/courtorders/120816zr1_bp7c.pdf">denied</a> a stay of execution.</p>
<p>However, <a href="https://www.buzzfeed.com/tasneemnashrulla/alabama-execution-ronald-smith?utm_term=.nexEJjA2e#.wlKRz1ry9">as BuzzFeed notes,</a> last month the Supreme Court voted to stay an execution by another Alabama man, Thomas Arthur, raising similar claims. A fifth vote to stay the Arthur execution came from Chief Justice John Roberts, <a href="https://www.supremecourt.gov/orders/courtorders/110316zr1_6537.pdf">who wrote</a>:</p>
<blockquote><p>I do not believe that this application meets our ordinary criteria for a stay. This case does not merit the Court’s review: the claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the three. Four Justices have, however, voted to grant a stay. To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy.</p></blockquote>
<p>That same &#8220;courtesy&#8221; vote does not seem to have been offered in last night&#8217;s execution, and as of yet we do not know why the Arthur execution merited courtesy and the Smith execution did not. There are several conceivable explanations, some more troubling than the others. For instance:</p>
<ul>
<li>Perhaps in the intervening month, the justices have had &#8220;the opportunity to more fully consider the suitability&#8221; of review on these issues, and it is now clear that there will be no review.</li>
<li>Perhaps the courtesy vote was a one-time experiment, and for some reason unknown to us, it has been deemed a failure.</li>
<li>Perhaps in the Arthur case the dissenting justices asked nicely or pleaded fervently, and in the Smith case they did not.</li>
<li>Perhaps courtesy votes were a way to build a friendly relationship with Justice Stephen Breyer, when it seemed as though Breyer was likely to be in a voting majority a lot more often than he is now.</li>
</ul>
<p>I am not inclined to jump to conclusions and assume that it was one of the troubling explanations. But we do not know what the official explanation is. For these kinds of decisions &#8212; on what <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545130">I have called the &#8220;Shadow Docket&#8221;</a> &#8212; the justices do not usually explain their reasoning at all. And if they do provide an explanation, as with the &#8220;courtesy&#8221; vote last month, they don&#8217;t feel any obligation to continue providing explanations if they do something different later. So it is not clear whether we will ever know why the two cases were treated differently.</p>Will BaudeFri, 09 Dec 2016 13:16:28 +00008WuVkweQfrWJUFIJ[Eugene Volokh] Second Amendment challenge to New York state stun gun banhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/07/second-amendment-challenge-to-new-york-state-stun-gun-ban/<p><a href="http://14544-presscdn-0-64.pagely.netdna-cdn.com/wp-content/uploads/2016/12/New-York-sued-in-federal-court-over-Taser-ban.pdf"><i>Avitabile v. Cuomo</i></a>, filed over the weekend in federal district court, claims that the New York state ban on stun guns violates the Second Amendment; I&#8217;m pleased to say that I&#8217;ll be consulting a bit on this litigation. For more on recent developments in stun gun law, see <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/14/new-jersey-concedes-that-state-stun-gun-ban-violates-the-second-amendment/?utm_term=.1d3c6c2389ac">this post</a>; for more on the general Second Amendment issue, see <a href="http://www.law.ucla.edu/volokh/stungun.pdf">this article</a> and, of course, the Supreme Court&#8217;s decision in <a href="https://scholar.google.com/scholar_case?case=9787227852955489057"><i>Caetano v. Massachusetts</i></a>.</p>Eugene VolokhWed, 07 Dec 2016 21:50:37 +000006k2ZbIUWjzdbzGK[David Bernstein] The Supreme Court oral argument that cost Democrats the presidencyhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/07/the-supreme-court-oral-argument-that-cost-democrats-the-presidency/<div id="attachment_26364" style="width: 918px" class="wp-caption aligncenter"><img class="size-full wp-image-26364" src="http://img.washingtonpost.com/rf/image_908w/2010-2019/WashingtonPost/2015/06/26/National-Politics/Images/2015-06-26T140857Z_01_TOR502_RTRIDSP_3_USA-COURT-GAYMARRIAGE.jpg" alt="Vin Testa of Washington, DC, waves a gay rights flag in front of the Supreme Court before a hearing about gay marriage in Washington in an April 28, 2015 file photo. The U.S. Supreme Court ruled on June 26, 2015 that the U.S. Constitution provides same-sex couples the right to marry in a historic triumph for the American gay rights movement. The court ruled 5-4 that the Constitution's guarantees of due process and equal protection under the law mean that states cannot ban same-sex marriages. With the ruling, gay marriage will become legal in all 50 states. REUTERS/Joshua Roberts/files" width="908" height="624" /><p class="wp-caption-text">Vin Testa of Washington in front of the Supreme Court before a hearing about gay marriage on April 28, 2015. (Joshua Roberts/Reuters)</p></div>
<p>The presidential election was so close that many factors were &#8220;but-for&#8221; causes of Donald Trump&#8217;s victory. One that&#8217;s been mostly overlooked is Trump&#8217;s surprising success with religious voters. According to exit polls, Trump received 81 percent of the white evangelical Christian vote, and Hillary Clinton only 16 percent. Trump did significantly better than the overtly religious Mitt Romney and the overtly evangelical George W. Bush. He likely over-performed among other theologically conservative voters, such as traditionalist Catholics, as well. Not bad for a thrice-married adulterer of no discernible faith.</p>
<p>To what can we attribute Trump&#8217;s success? The most logical answer is that religious traditionalists felt that their religious liberty was under assault from liberals, and they therefore had to hold their noses and vote for Trump. As<a href="http://www.realclearpolitics.com/articles/2016/11/16/the_god_that_failed_132363.html"> Sean Trende of RealClear Politics noted, since 2012</a>:</p>
<blockquote><p>Democrats and liberals have: booed the inclusion of God in their platform at the 2012 convention (this is disputed, but it is the perception); endorsed a regulation that would allow transgendered students to use the bathroom and locker room corresponding to their identity; attempted to force small businesses to cover drugs they believe induce abortions; attempted to force nuns to provide contraceptive coverage; forced Brendan Eich to step down as chief executive officer of Mozilla due to his opposition to marriage equality; fined a small Christian bakery over $140,000 for refusing to bake a cake for a same-sex wedding; vigorously opposed a law in Indiana that would provide protections against similar regulations – despite having overwhelmingly supported similar laws when they protected Native American religious rights – and then scoured the Indiana countryside trying to find a business that would be affected by the law before settling upon a small pizza place in the middle of nowhere and harassing the owners. In 2015, the United States solicitor general suggested that churches might lose their tax exempt status if they refused to perform same-sex marriages. In 2016, the Democratic nominee endorsed repealing the Hyde Amendment, thereby endorsing federal funding for elective abortions.</p></blockquote>
<p>Megan McArdle of Bloomberg <a href="https://www.bloomberg.com/view/articles/2016-12-02/chip-and-joanna-gaines-vs-the-left-s-doomed-coercion">similarly pointed out</a>, &#8220;Over the last few years, as controversies have erupted over the rights of cake bakers and pizza places to refuse to cater gay weddings, the rights of nuns to refuse to provide insurance that covers birth control, the rights of Catholic hospitals to refuse to perform abortions, and the rights of Christian schools to teach (and require students and teachers to practice) traditional Christian morality, some Christians have begun to feel that their communities are under existential threat.&#8221;</p>
<p>Let&#8217;s focus on one of these incidents, the time the solicitor general of the United States acknowledged that religious institutions that oppose as a matter of internal policy same-sex marriage may lose their tax exemptions. At oral argument in the <em>Obergefell</em> same-sex marriage case, there was the following colloquy:</p>
<p>Justice Samuel Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­ sex marriage?</p>
<p>Soliticitor General Verrilli: You know, I ­, I don&#8217;t think I can answer that question without knowing more specifics, but it&#8217;s certainly going to be an issue. ­ I don&#8217;t deny that. I don&#8217;t deny that, Justice Alito. It is ­­it is going to be an issue.</p>
<p>With the mainstream media busy celebrating the Supreme Court&#8217;s ultimate recognition of a right to same-sex marriage, this didn&#8217;t get that much attention in mainstream news outlets. But in the course of researching my book, <a href="https://www.amazon.com/Lawless-Administrations-Unprecedented-Assault-Constitution/dp/1594038333">&#8220;Lawless,&#8221;</a> I noticed that Solicitor General Donald B. Verrilli Jr.&#8217;s answer was big news in both the conservative blogosphere and in publications catering to religiously traditionalist audiences. The idea that Regent University or Brigham Young University or the local Catholic university or the many hundreds of other religious schools &#8212; and potentially other religious organizations &#8212; could be put at a severe competitive disadvantage if they refused on theological grounds to extend the same recognition to same-sex couples as to opposite-sex couples struck many as a direct and serious assault on religious liberty.</p>
<p>In short, many religious Christians of a traditionalist bent believed that liberals not only reduce their deeply held beliefs to bigotry, but want to run them out of their jobs, close down their stores and undermine their institutions. When I first posted about this on Facebook, I wrote that I hope liberals really enjoyed running Brendan Eich out of job and closing down the Sweet Cakes bakery, because it cost them the Supreme Court. I&#8217;ll add now that I hope Verrilli enjoyed putting the fear of government into the God-fearing because it cost his party the election.</p>David BernsteinWed, 07 Dec 2016 21:29:57 +0000xo1FYpAKDUNInm8G[Ilya Somin] Volokh Conspiracy holiday giftshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/07/volokh-conspiracy-holiday-gifts-2/<p>The holiday season is now upon us! And if you are looking for possible gifts for regular Volokh Conspiracy readers in your life, what could better than <a href="http://www.washingtonpost.com/news/volokh-conspiracy/books/">books by VC bloggers</a>? Some of these books help shed light on the difficult political situation in which the nation finds itself right now.</p>
<p>Among my favorite books by VC authors are Randy Barnett’s <a href="http://a-fwd.com/asin-com=0691159734&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20"><em>Restoring the Lost Constitution</em></a>, David Bernstein’s <a href="http://a-fwd.com/asin-com=022600404X&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20"><em>Rehabilitating Lochner</em></a>, Dale Carpenter, <a href="http://a-fwd.com/asin-com=0393062082&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20"><em>Flagrant Conduct: The Story of Lawrence v. Texas</em></a>, and Eugene Volokh,<a href="http://a-fwd.com/asin-com=1599417502&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20"><em> Academic Legal Writing</em>. </a></p>
<p>Randy’s book is one of the best recent works on originalism and constitutional legitimacy. It is relevant to ongoing debates over legal interpretation that are sure to heat up again as a Supreme Court nomination looms. <em>Rehabilitating Lochner</em> explodes numerous myths about one of the Court’s most reviled decisions, one that remains relevant to current debates over &#8220;judicial activism.&#8221; <em>Flagrant Conduct</em> is a great account of a milestone in the history of gay rights. It provides useful historical context for the still-ongoing battles over gay rights issues. Finally, <em>Academic Legal Writing</em> is filled with useful advice, while also somehow managing to make this generally unexciting topic interesting. </p>
<p>This list is not intended to slight important books by <a href="http://a-fwd.com/asin-com=0817913440&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20">Ken Anderson</a>, <a href="http://a-fwd.com/asin-com=0314281363&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20">Orin Kerr</a>, <a href="http://a-fwd.com/asin-com=0936783583&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20">David Kopel</a>, <a href="http://a-fwd.com/asin-com=0199858217&amp;com=thevolocons0d-20&amp;ca=thevolocons0d-20&amp;uk=thevolocons0d-20&amp;de=thevolocons0d-20&amp;fr=thevolocons0d-20&amp;es=thevolocons0d-20&amp;it=thevolocons0d-20&amp;cn=thevolocons0d-20&amp;jp=thevolocons0d-20">David Post</a>, and others. I have not discussed them only because their subjects are relatively distant from my own areas of expertise.</p>
<p>In the spirit of shameless self-promotion, I will also mention the the new much-expanded edition of my own recently published book<a href="https://www.amazon.com/Democracy-Political-Ignorance-Smaller-Government/dp/0804799318/"> <em>Democracy and Political Ignorance: Why Smaller Government is Smarter</em></a>. Sadly, the kind of ignorance discussed in the book played <a href="http://www.cnn.com/2016/05/12/opinions/political-ignorance-somin/">an important role</a> in <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=2&amp;cad=rja&amp;uact=8&amp;ved=0ahUKEwjuy6LtxOHQAhVEYyYKHV8OCUEQFgggMAE&amp;url=https%3A%2F%2Fwww.washingtonpost.com%2Fnews%2Fvolokh-conspiracy%2Fwp%2F2016%2F11%2F13%2Fpolitical-ignorance-and-the-election%2F&amp;usg=AFQjCNG6Dsv2eGJvRxdL1U6h2Mf6SRdudw&amp;sig2=X6H_QRu5KYjo3V7-bGEeHQ">the 2016 election</a>. Whether or not people agree with the specific solutions advocated in my book, I hope that the experience of the last year will lead more Americans to at least <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/08/time-to-take-political-ignorance-seriously/?utm_term=.a3012bcee948">start taking the problem of political ignorance seriously</a>. </p>
<p>My other books include <a href="http://www.amazon.com/Grasping-Hand-London-Limits-Eminent/dp/022625660X/"><em>The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain</em></a>, which is the first book by a legal scholar about one of the Supreme Court&#8217;s most controversial modern decisions (now out in<a href="https://www.amazon.com/Grasping-Hand-London-Limits-Eminent/dp/022642216X/ref=tmm_pap_swatch_0?_encoding=UTF8&amp;qid=&amp;sr="> an updated paperback edition</a>), and <a href="http://www.amazon.com/Conspiracy-Against-Obamacare-Volokh-Affordable/dp/1137363746"><em>A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case</em></a> (coauthored with VC-ers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel). <em>Conspiracy Against Obamacare</em> focuses on the VC’s significant role in the Obamacare litigation, and is the only book that includes contributions by six different VC bloggers. </p>Ilya SominWed, 07 Dec 2016 18:14:29 +0000pXVcbVsg0RUnsRNz[David Bernstein] Is it time for progressives to stop venerating FDR?http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/07/is-it-time-for-progressives-to-stop-venerating-fdr/<div id="attachment_44158" style="width: 970px" class="wp-caption aligncenter"><img class="size-full wp-image-44158" src="http://www.washingtonpost.com/rf/image_960w/2010-2019/WashingtonPost/2016/11/07/Outlook/Images/AP_3312040491478562601.jpg" alt="" width="960" /><p class="wp-caption-text">President Franklin D. Roosevelt in 1933. (Associated Press)</p></div>
<p>President Franklin D. Roosevelt has long been an icon of the liberal/progressive left. There were always critics on the far left who considered him a crypto-fascist for his efforts to &#8220;save capitalism,&#8221; but those critiques have not had much of an effect on the more mainstream left.</p>
<p>Yet it seems like the time has come for FDR&#8217;s star to fall. Consider three of the most salient issues for the American left today, the issues that really motivate the grass roots:</p>
<p>1. Opposition to violence against African Americans, as in the Black Lives Matter movement. FDR refused to support federal anti-lynching legislation, and it wasn&#8217;t because he had sudden federalist qualms about asserting federal authority over local matters. First, he didn&#8217;t have any interest in bucking the powerful southern wing of his party. (By contrast, FDR&#8217;s Republican predecessors all supported federal anti-lynching legislation.) While FDR&#8217;s apologists <a href="http://reason.com/archives/2013/05/21/the-new-deal-goes-south">such as Ira Katznelson</a> suggest that&#8217;s all there is to it, they aren&#8217;t able to come up with any substantial evidence that FDR personally cared about civil rights for African Americans in general, or about lynching in particular. Instead, the (anachronistic) argument seems to be simply that because FDR was a &#8220;liberal,&#8221; he must have had liberal views on race.</p>
<p>2. Rights of immigrants, documented and undocumented, especially with regard to Latinos. Somehow, it&#8217;s not widely known that the Roosevelt administration engaged in the largest mass deportation of immigrants in American history, <a href="http://www.npr.org/2015/09/10/439114563/americas-forgotten-history-of-mexican-american-repatriation">expelling hundreds of thousands &#8212; perhaps up to two million &#8212; of people of Mexican descent who were residing in the United States.</a> An unknown but significant chunk of these deportees were American citizens, but that nicety didn&#8217;t stop the deportations.</p>
<p>3. Sympathy of the plight of refugees. FDR was not willing to spend any significant political capital to help Jewish refugees from Europe. While Great Britain t<a href="https://www.ushmm.org/wlc/en/article.php?ModuleId=10005260">ook in 20,000 Jewish children in the Kindertransport</a>, FDR let a Congressional bill with similar aims die.</p>
<p>There is much more to be said. As is well-known, Roosevelt interned U.S. citizens and noncitizens of Japanese descent during World War II, setting the precedent for those who plan &#8220;Muslim registries&#8221; and the like. Less well-known, New Deal legislation was planned with <a href="https://www.amazon.com/Only-Place-Redress-Reconstruction-Constitutional/dp/0822325837">the intentional destruction of jobs held by African Americans in the South in mind</a>.</p>
<p>Surely this isn&#8217;t FDR&#8217;s entire record, and there are obviously aspects of that record that American liberals can still admire. But perhaps a revocation of the virtual sainthood FDR still enjoys is in order.</p>David BernsteinWed, 07 Dec 2016 17:50:52 +0000gwB8JPfCQxWy7MUT[Eugene Volokh] Algebra class means junior high school must allow Gay-Straight Alliancehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/06/algebra-class-means-junior-high-school-must-allow-gay-straight-alliance/<p>The federal requires “<a href="https://www.law.cornell.edu/uscode/text/20/4071">any public secondary school which receives Federal financial assistance</a>” to generally let non-curricular student groups use school facilities (at least so long as it allows at least one such group). It was largely intended to protect religious student groups, but it also protects other groups, and it has often been used by Gay-Straight Alliances. But it only applies to &#8220;<a href="https://www.law.cornell.edu/uscode/text/20/4072">secondary schools</a>,&#8221; defined as &#8220;public school[s] which provide[] secondary education as determined by State law.&#8221; In <i>Carver Middle School Gay-Straight Alliance v. School Board of Lake County,</i> <a href="http://media.ca11.uscourts.gov/opinions/pub/files/201514183.pdf">decided today by the U.S. Court of Appeals for the 11th Circuit</a>, asks<a href="https://www.law.cornell.edu/uscode/text/20/4071">: </a>Does a particular junior high school qualify as &#8220;provid[ing] secondary education.&#8221; And the answer turns on algebra<a href="https://www.law.cornell.edu/uscode/text/20/4071"> (</a><a href="https://www.youtube.com/watch?v=cGYNuoCigGY">Big Gay Algebra</a><a href="https://www.law.cornell.edu/uscode/text/20/4071">? Math is super!):</a></p>
<blockquote><p>The School Board of Lake County, Florida, administers Carver Middle School, a public school that educates students in grades six through eight. Middle schools in Florida must provide “at least one high school level mathematics course for which students may earn high school credit.” Carver provides Algebra I to meet this obligation.</p>
<p>To [determine whether Carved Middle School provides secondary education as determined by State law], we must review how Florida law uses the term “secondary education.” After surveying the relevant provisions of Florida law, we conclude that secondary education, at least, means providing courses through which students can obtain high school credit.</p>
<p>Florida law does not expressly define “secondary education,” but it does define the substantially similar term “adult secondary education” in its “K-20 Education Code.” “‘Adult secondary education’ means courses through which a <i>person receives high school credit</i> that leads to the award of a high school diploma or courses of instruction through which a student prepares to take the high school equivalency examination.” .. “Adult” modifies “secondary education” only to distinguish the kind of student who receives the education. &#8230; “Adult” signifies that it is adults, not adolescents, who receive education under this chapter.</p>
<p>Other provisions of the Education Code also suggest that the term “secondary education” means courses through which students can obtain high school credit. One provision grants certain state colleges authority to “develop charter schools that offer <i>secondary education</i>.” That provision establishes that students can “graduat[e]” from “high school” at these charter schools, which supports the definition &#8230; that secondary education includes courses for which high school credit is available. Another provision requires the Department of Juvenile Justice to provide an educational program that includes, separately, “[s]econdary education” and “[h]igh school equivalency examination preparation.” &#8230; Finally, with a few exceptions, colleges and universities in Florida require students to obtain a high school diploma before enrolling in programs that provide <i>post</i>-secondary education. Because “post-secondary education” comes after “secondary education,” these provisions suggest that secondary education encompasses courses provided for high school credit. When read together, these provisions establish that a public school “provides secondary education” if it provides courses through which students can obtain high school credit.</p>
<p>Instead of arguing about whether Carver provides secondary education, both parties argue about whether Carver is a “secondary school” under Florida law. The district court ruled that Carver is not a “secondary school.” Until July 1, 2013, Florida law defined “secondary schools” as “schools that primarily serve students in grades 6 through 12.” The district court ruled, and the Board agrees, that because the legislature repealed the definition, it intended to exclude middle schools from the term “secondary school.” The Alliance and H.F. counter by citing several provisions that use the term “secondary school” as if it encompasses middle schools.</p>
<p>We do not find it persuasive that Florida repealed section 1003.413, which included middle schools as secondary schools. To be sure, “secondary school” is ordinarily understood as an institution “that provides secondary education.” But if we concluded that Carver is not a secondary school under state law, that conclusion would not foreclose the possibility that Carver could still “provide secondary education” under state law.</p>
<p>The dozens of Florida statutes that use the term “secondary school” do so inconsistently. For example, one provision reads, “It is the intent of the Legislature to provide assistance to all <i>public secondary schools</i>, with a primary focus on low-performing <i>middle and high schools</i>.” This provision suggests that middle schools are secondary schools. Yet, as the Board correctly argues, the definition of “school” suggests the opposite because it appears to equate secondary and high schools, and another provision suggests that only high schools are secondary schools because Florida law requires secondary schools to provide “a course of study and instruction in the safe and lawful operation of a motor vehicle.” Because the term in the Equal Access Act that matters is “secondary education,” not “secondary school,” we need not delve into this tangle of provisions.</p>
<p>We conclude that “secondary education,” under Florida law, means at least “courses through which a person receives high school credit that leads to the award of a high school diploma.” Carver Middle School provides courses [i.e., Algebra I] through which students can obtain high school credit. The Equal Access Act applies to Carver Middle School.</p></blockquote>
<p>Now there&#8217;s a possible counterargument: &#8220;school which provides secondary education&#8221; might mean a school that generally provides a program of secondary education, rather than a school that provides at least one class that is characteristic of secondary education; and that would require figuring out whether, under state law, a general program of junior high school education indeed qualifies as secondary education (a matter on which, as the court points out, state law seems uncertain). But the panel&#8217;s approach also seems defensible, though I wish it had discussed this counter-argument further. (By the way, if the Equal Access Act doesn&#8217;t apply, the First Amendment might still bar schools from discriminated against student clubs based on their viewpoint, but the panel did not discuss that question.)</p>
<p>Note that the panel opinion was written by Judge William Pryor, a noted and highly respected conservative judge who is on President-elect Trump&#8217;s list of potential Supreme Court nominees.</p>Eugene VolokhWed, 07 Dec 2016 01:05:13 +0000tQVHGNeG9eaOLzyr[Eugene Volokh] University lecturer’s suit over firing based on (allegedly) consensual sexual relationship with student-to-be can go forwardhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/06/university-lecturers-suit-over-firing-based-on-allegedly-consensual-sexual-relationship-with-student-to-be-can-go-forward/<p>From two Nov. 30 opinions in <i>Wilkerson v. University of North Texas</i> (N.D. Tex.); first, the facts &#8212; note that the professor alleges that he didn&#8217;t know until after the incident that CB had been admitted as a student, though presumably in light of the March 1 party, the professor might have had reason to suspect this:</p>
<blockquote><p>This case arises from the non-renewal of an employment contract for a non-tenured professor. Plaintiff, Dale Wilkerson, was originally hired by the University of North Texas &#8230; in 2003 as a Lecturer in the Department of Religion and Philosophy &#8230; in the College of Arts and Sciences. In 2008, Plaintiff was reappointed and promoted to Principal Lecturer. Plaintiff held that position until his termination in June 2014. Principal Lecturer is the highest level attainable at UNT for any teacher who is not tenured or on a tenure track appointment. The only known causes for discharge of teachers with long years of service were because of elimination or reduction of a particular program, a general reduction in force, or the commission of a serious violation of UNT&#8217;s policies and procedures.</p>
<p>Plaintiff&#8217;s complaint centers around an allegedly wrongful discharge by UNT that was based at least in part on a relationship that UNT deemed to be inappropriate.</p>
<p>On March 1, Plaintiff met a 26-year-old[ female], CB, at a graduate student recruitment weekend at the house of the Director of Graduate Studies (“DGS”) Dr. Gene Hargrove &#8230;. CB had applied to UNT in the Fall 2011 semester, and was admitted for the Fall 2012 semester, but deferred her enrollment until the Fall 2013 semester.</p>
<p>On May 31, 2013, Plaintiff was approached at a local bar by CB who was in town for job training. On June 2, 2013, CB went to Plaintiff&#8217;s house. According to CB&#8217;s complaint with the Office of Equal Opportunity (“OEO”), Plaintiff held CB down, kissed her, and asked her to undress while at Plaintiff&#8217;s house. Plaintiff kissed CB again when he dropped her off at her house. Plaintiff admits to kissing CB, but denies holding her down, asking her to undress, or that either kiss was not consensual. CB did not recall who initiated either kiss but claimed that they were not consensual.</p>
<p>On June 30, 2013, CB invited herself to attend a concert in Memphis, Tennessee, that Plaintiff was attending with a platonic female friend over the Fourth of July holiday. CB, Plaintiff, and the female friend agreed to share a hotel room to save expenses. No sort of romantic activity occurred. It is not until this time that Plaintiff claims to have learned of CB&#8217;s enrollment at UNT. Until this point in time, CB was not taking and had not taken any courses by Plaintiff. Plaintiff was appointed to DGS in September 2013 by Dr. Patricia Glazebrook &#8230;, the Department Chair of Philosophy and Religion Studies.</p>
<p>On February 7, 2014, CB filed a complaint alleging sexual harassment by Plaintiff during the June 2, 2013 encounter. On February 24, 2014, the OEO issued a formal complaint.</p>
<p>On March 26, 2014, Glazebrook conducted Plaintiff&#8217;s evaluation for 2011–2013. Among other statements, she noted that Plaintiff ranked second out of thirteen faculty members for teaching. In early April 2014, Plaintiff asked Glazebrook why he had not received a letter renewing his teaching appointment for the 2014–2015 academic year. Glazebrook told Plaintiff that she was withholding the letter pending the outcome of a complaint to the OEO.</p>
<p>In a report dated May 12, 2014, the OEO found (1) at the time of the incident, Plaintiff did not have authority over CB and therefore could not be in violation of the consensual relationship policy; and (2) there was insufficient evidence to establish a violation of UNT&#8217;s sexual harassment policy. CB did not appeal the OEO&#8217;s finding.</p>
<p>On July 3, 2014, Plaintiff received a letter from Glazebrook notifying him of UNT&#8217;s decision not to renew his contract.</p>
<p>Plaintiff appealed his discharge to the College of Arts and Sciences Grievance Committee (“CASGC”). The CASGC found (1) that Glazebrook violated the Philosophy Department By-Laws; (2) that she had been uncooperative and untruthful during the investigation; (3) that due process and equal protection standards were clearly violated; and (4) that there was no factual basis for firing Plaintiff. The report dated July 25, 2014, unanimously recommended that the Dean reverse Glazebrook&#8217;s decision.</p>
<p>The CASGC report was forwarded to the Dean of Arts and Sciences, Dr. Arthur Goven &#8230;. Goven found that Plaintiff acted with “poor professional judgment” based on statements by Glazebrook that Plaintiff had accepted the job as DGS before June 2, 2013 and knew or should have known that CB would be under his influence in the fall semester.</p>
<p>Plaintiff appealed to the Provost and Vice President for Academic Affairs, Dr. Warren Burggren &#8230;. Burggren charged a subcommittee of the CASGC &#8230;. In a report dated January 26, 2015, The Subcommittee found that Plaintiff&#8217;s due process rights had been violated because Glazebrook failed to consult with the Department Personnel Affairs Committee. However, the Subcommittee ultimately found that Plaintiff “did indeed exercise poor professional judgment.” The Subcommittee stated that the “charge of poor judgment would remain whether or not Wilkerson was DGS because his involvement with the female student was not appropriate given her position as an incoming graduate student and employee in the [Department].” Further, the Subcommittee recommended that because Plaintiff&#8217;s incident was one of several cases involving Department faculty members, “[t]hese problems must be addressed in a thorough and systematic fashion.” The Subcommittee did not make a recommendation whether Plaintiff should be fired or reinstated.</p>
<p>On March 17, 2015, the Interim Provost and Vice President for Academic Affairs, Finley Graves, sent Plaintiff a letter upholding the decision to not reappoint Plaintiff&#8230;.</p></blockquote>
<p>Wilkerson sued, and last week the federal district court allowed his case to go forward. Here&#8217;s the court&#8217;s reasoning as to Wilkerson&#8217;s claim that the investigation violated the federal Title IX sex-equality-in-education provision:</p>
<blockquote><p>Plaintiff alleges retaliation by a federally funded institution because of his participation in the sexual harassment investigation against him. Defendant argues that Plaintiff is not entitled to protection because he was the person being investigated and Title IX does not protect that kind of person. In response, Plaintiff argues that the phrase “in any manner” found in 34 C.F.R. § 100.7(e) allows the subject of a sexual harassment claim to be protected from discrimination as well as a person who is not under investigation.</p>
<p>Title IX provides that “[n]o person in the United States shall, on the basis of sex, be &#8230; subjected to discrimination under any education program or activity receiving Federal financial assistance.” With regard to sexual harassment investigations, “no recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual &#8230; because he has &#8230; testified, assisted, or participated <i>in any manner</i> in an investigation, proceeding, or hearing under this part.” The term “discrimination” is a term that covers a “wide range of intentional unequal treatment; by using such a broad term, Congress gave the statute a broad reach.”</p>
<p>A broad reading of the above regulation protects the subject of a sexual harassment claim. Anything less would place too great a weight on false accusations by stripping the subject of the investigation of all protections from the very institution that is supposed to be an impartial tribunal.</p>
<p>Here, CB filed a sexual harassment complaint against Plaintiff. Plaintiff participated and provided evidence in the investigation of CB&#8217;s sexual harassment claim against him. The OEO exonerated Plaintiff for claims that he violated the Sexual Harassment Policy and the Consensual Conduct Policy. CB did not appeal, therefore making the OEO&#8217;s decision final.</p>
<p>Nevertheless, Glazebrook fired Plaintiff for “poor judgment.” Glazebrook has never said what “poor judgment” refers to. After Plaintiff appealed Glazebrook&#8217;s decision to fire him, the CASGC found that Glazebrook violated University standards. The CASGC&#8217;s findings were forwarded to Goven who then took <i>ex </i>parte evidence from Glazebrook and ultimately upheld Glazebrook&#8217;s decision.</p>
<p>Later, Burggren referred the matter to the Ad Hoc Committee. The Ad Hoc Committee incorrectly stated that CB was a UNT employee at the time of the alleged sexual misconduct. The Ad Hoc Committee further stated that allegations of sexual harassment were a serious problem in the Department of Philosophy.</p>
<p>The Ad Hoc Committee did not allow Plaintiff to hear or refute any of these allegations. Using these facts, the Ad Hoc Committee found that Plaintiff used poor professional judgment and that Plaintiff was fired for cause. At the same time, the Ad Hoc Committee found that Plaintiff&#8217;s due process rights were violated at the Department level. The Ad Hoc Committee also agreed with the CASGC that Glazebrook violated University standards.</p>
<p>The Court finds that Plaintiff has alleged sufficient facts to support a claim that he was retaliated against by UNT because he was the subject of a sexual harassment investigation and because he provided testimony and evidence in his favor. Defendants&#8217; motion on this ground is denied.</p></blockquote>
<p>Here&#8217;s the analysis of Wilkerson&#8217;s Due Process Clause claim:</p>
<blockquote><p>Plaintiff alleges a property interest in continued employment “by virtue of his written contract, which incorporates the provisions of the UNT Policy &amp; Procedure Manual and the UNT Faculty Handbook, and of the customs of the UNT academic process”.Defendants argue that Plaintiff&#8217;s property claim must fail because Plaintiff&#8217;s contract was a non-tenured, five-year contract with annual renewals, which is distinguishable from a tenured professor&#8230;.</p>
<p>Here, Plaintiff has alleged that it is the long-standing custom and practice at UNT that non-tenured teachers who have multi-year appointments can rely on continued employment until the expiration of the full term of their contract as long as their job performance meets or exceeds expectations. Plaintiff has further alleged that he received favorable evaluations up until his termination. In Plaintiff&#8217;s final evaluation, Glazebrook ranked him as the second best faculty member in teaching. The final evaluation further noted the several honors given to Plaintiff by the Department in 2013.</p>
<p>Finally, Plaintiff alleged that the OEO exonerated him of any violation of UNT&#8217;s Sexual Harassment Policy or the Consensual Conduct Policy. Assuming these facts are true, Plaintiff has alleged sufficient facts to support a claim against Burggren, Goven, and Glazebrook for deprivation of his property interest in continued employment in light of the policies and practices of UNT.</p></blockquote>
<p>And here&#8217;s the analysis of Wilkerson&#8217;s constitutional freedom of intimate association claim:</p>
<blockquote><p>Plaintiff alleges that he was retaliated against and denied due process as a result of exercising his right to freely associate with other persons. “The [Supreme] Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” These relationships are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. These types of associations that have been protected are typically couched in terms of family, such as marriage, childbirth, raising and educating children, and cohabitation with one&#8217;s relatives.</p>
<p>Plaintiff was fired for a brief consensual relationship. [Here I assume that the court is accepting plaintiff’s view of the facts, as it would on a pretrial motion such as this one, and asking whether the plaintiff has a viable legal claim based on those facts.-EV] Based on Plaintiff&#8217;s allegations, the Court finds Plaintiff has alleged sufficient facts to support a claim against Burggren, Goven, and Glazebrook for infringement of his freedom of association.</p></blockquote>Eugene VolokhTue, 06 Dec 2016 21:07:42 +0000MGUej38z3jOQNHqg[Orin Kerr] 9th Circuit upholds warrantless email surveillance of person in the U.S. communicating with foreigners abroad when the foreigners are the ‘targets’http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/05/9th-circuit-upholds-warrantless-email-surveillance-of-person-in-the-u-s-communicating-with-foreigners-abroad-when-the-foreigners-are-the-targets/<p>The U.S. Court of Appeals for the 9th Circuit has handed down <em><a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/05/14-30217.pdf">United States v. Mohamud</a></em>, an important case on how <a href="https://www.stanfordlawreview.org/print/article/the-fourth-amendment-and-the-global-internet/">the Fourth Amendment applies to the global Internet</a>. The case involves monitoring under Section 702 of the Foreign Intelligence Surveillance Act. Warrantless monitoring of a foreign national&#8217;s email account from inside the United States revealed emails between the foreign national and Mohamud inside the United States. That led the government to obtain a FISA warrant to monitor Mohamud&#8217;s account. Among the questions in the case was whether the initial warrantless collection of the Mohamud&#8217;s emails, incidental to the targeting of the foreign national&#8217;s emails, was consistent with Fourth Amendment. In an opinion by Judge John Owens, the court ruled that the Fourth Amendment was not violated.</p>
<p>Here&#8217;s an overview of the reasoning together with a few (mostly critical) comments from me.</p>
<p>First, the court rules that no warrant is required when the government, from a monitoring point either inside or outside the United States, tries to monitor the communication of someone with no Fourth Amendment rights and collects the communications of U.S. persons only incidentally:</p>
<blockquote><p>As a threshold matter, “the Fourth Amendment does not apply to searches and seizures by the United States against a non-resident alien in a foreign country.” United States v. Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 274–75 (1990)); see also Verdugo-Urquidez, 494 U.S. at 274–75 (“At the time of the search, [respondent] was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.”).</p>
<p>Thus, the government’s monitoring of the overseas foreign national’s email fell outside the Fourth Amendment. Mohamud argues that under Verdugo-Urquidez, the location of the search matters, and that here, the searches took place in the United States.</p>
<p>Indeed, the government acknowledges that “collection from service providers under Section 702 takes place within the United States.” Yet, as one court put it, “what matters here is the location of the target,” and not where the government literally obtained the electronic data. United States v. Hasbajrami, No. 11-CR-623, 2016 WL 1029500, at *9 n.15 (E.D.N.Y. Mar. 8, 2016) (emphasis in original); see also Kris &amp; Wilson, National Security Investigations &amp; Prosecutions § 17:3 (2016) (“For non-U.S. person targets, there is no probable-cause requirement; the only thing that matters is [ ]the government’s reasonable belief about[ ] the target’s location.”).</p>
<p>Consistent with Verdugo-Urquidez and our precedent, we hold that this particular type of non-upstream collection— where a search was not directed at a U.S. person’s communications, though some were incidentally swept up in it—does not require a warrant, because the search was targeted at a non-U.S. person with no Fourth Amendment right.</p>
<p>Mohamud and Amici urge us not to apply this “incidental overhear” approach. First, Amici contend that surveillance of U.S. persons’ communications under § 702 is not “incidental” because the monitoring of communications between foreign targets and U.S. persons was specifically contemplated and to some degree desired. We agree that such communications were anticipated. As the Privacy and Civil Liberties Oversight Board found with respect to PRISM collection, “[t]he collection of communications to and from a target inevitably returns communications in which nontargets are on the other end, some of whom will be U.S. persons. Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent.” PCLOB Report at 82; see also Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv. J.L. &amp;Pub. Pol’y 117, 159–64, 259–62 (2015) (discussing the relative volume and intrusiveness of surveillance authorized under § 702). The fact that the government knew some U.S. persons’ communications would be swept up during foreign intelligence gathering does not make such collection any more unlawful in this context than in the Title III or traditional FISA context.</p>
<p>Mohamud and Amici also contend that the “sheer amount ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does increase the importance of minimization procedures once the communications are collected.</p></blockquote>
<p>I&#8217;m confused. Section 702 draws a <em>statutory</em> distinction between &#8220;targeting&#8221; someone and merely incidentally collecting that person&#8217;s communications. But how is that a <em>constitutional</em> distinction? There&#8217;s no Fourth Amendment concept of a &#8220;target,&#8221; at least that I know of. A &#8220;target&#8221; is a subjective concept, and the Supreme Court has repeated in dozens of cases that the Fourth Amendment follows objective rules rather than the government&#8217;s subjective intent. <em>See, e.g., Whren v. United States</em>, 517 U.S. 806, 814 (1996) (&#8220;The Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.”); <em>Horton v. California</em>, 496 U.S. 128, 138 (1990) (&#8220;Evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.&#8221;). And yet if I read the opinion correctly, whether there is a warrant requirement for monitoring hinges on the subjective question of who the government intends as its &#8220;target.&#8221;</p>
<p>I&#8217;m not sure what to make of this. Is the idea that the special needs exception applied in the national security setting reduces the warrant requirement to reasonableness, and that whether the special needs exception applies requires consideration of subjective intent? Or maybe the idea is that the warrant requirement has its own an intent requirement? I&#8217;m not sure. <em>Verdugo-Urquidez</em> says that some people have no Fourth Amendment rights, but I don&#8217;t see how that creates a &#8220;targeting&#8221; doctrine.</p>
<p>The court next assumes without deciding that Mohamud had Fourth Amendment rights in the emails collected: &#8220;It is unclear whether Mohamud had a right to bar use of these incidentally-collected communications in evidence against him on the basis that the communications were seized in violation of the Fourth Amendment. Commentators suggest that he does, so we will assume that here.&#8221;</p>
<p>Next, the court conducts a balancing inquiry and concludes that the monitoring here was reasonable. First, on the government side, the collection was about stopping terrorism, which is extremely important. Second, on the defendant&#8217;s side, the court concludes that Mohamud had only a &#8220;diminished&#8221; expectation of privacy:</p>
<blockquote><p>The district court determined that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties. We agree.</p>
<p>With respect to a U.S. person’s privacy interest, we treat emails as letters. See, e.g., [Redacted], 2011 WL 10945618, at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted by letter, telephone or e-mail, a person’s private communications are akin to personal papers.”); United States v. Warshak, 631 F.3d 266, 285–86 (6th Cir. 2010) (“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”).</p>
<p>Accordingly, until electronic communications reach the recipient, they retain the same level of privacy interest as if they were still in the home. See, e.g., United States v. Van Leeuwen, 397 U.S. 249, 251 (1970). But as with letters, “[a] person’s reasonable expectation of privacy may be diminished in ‘transmissions over the Internet or e-mail that have already arrived at the recipient.’” United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon delivery’ of the letter.” (citation omitted)).</p>
<p>It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 WL 1029500 at *11 &amp; n.18 (observing same distinction).</p>
<p>Thus, Mohamud’s interest in the privacy of his communications received by the overseas foreign national is diminished.</p></blockquote>
<p>I&#8217;m not particularly persuaded. If you analogize emails and letters &#8212; which I agree is correct &#8212; a person maintains full privacy rights in the letter until it is delivered and then has zero privacy rights in it after the letter is delivered. It&#8217;s an on-off switch, not a sliding scale. You have full privacy or none. Given that, why is the court speaking of &#8220;diminished&#8221; privacy rights, which implies some privacy rights but not full privacy rights? Cases like <em>Miller</em>, <em>Hoffa</em>, and <em>White</em> aren&#8217;t about people having &#8220;diminished&#8221; rights. They&#8217;re about circumstances in which a person has zero rights. Given that the court assumes that Mohamud had Fourth Amendment rights in the messages, it&#8217;s not clear it makes sense to rely on doctrines under which Mohamud would have no privacy rights to lower the amount of privacy at stake. (To be fair, <em>Heckencamp</em> used the word &#8220;diminished&#8221; in this context in dicta. But that was a single sentence relying on <em>Lifshitz</em>, which itself did not use that concept.)</p>
<p>The 9h Circuit cites a district court opinion by Judge Gleeson from earlier in the year for authority several times, and I gather they&#8217;re trying to follow Judge Gleeson. But Judge Gleeson&#8217;s opinion made some rather startling conclusions in footnotes with no analysis. It&#8217;s not exactly a model of legal analysis to follow, at least in my view.</p>
<p>The court then concludes that the monitoring was reasonable because there were other reasonable checks in place on the monitoring under the statute. The analysis is relatively long, and I&#8217;ll leave it to interested readers to check it out, but it ends with this:</p>
<blockquote><p>Accordingly, although we do not place great weight on the oversight procedures, under the totality of the circumstances, we conclude that the applied targeting and minimization procedures adequately protected Mohamud’s diminished privacy interest, in light of the government’s compelling interest in national security.</p>
<p>In sum, even assuming Mohamud had a Fourth Amendment right in the incidentally collected communications, the search was reasonable. Thus, we hold that the application of § 702 did not violate the Fourth Amendment under the particular facts of this case.</p></blockquote>
<p>The court also notes that its reasoning is not intended to answer every question about Section 702:</p>
<blockquote><p>Although § 702 potentially raises complex statutory and constitutional issues, this case does not. As explained [in the opinion], the initial collection of Mohamud’s email communications did not involve so-called “upstreaming” or targeting of Mohamud under § 702, more controversial methods of collecting information. It also did not involve the retention and querying of incidentally collected communications. All this case involved was the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected. Confined to the particular facts of this case, we hold that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment.</p></blockquote>Orin KerrMon, 05 Dec 2016 21:51:13 +0000BdcG8iDEvtnkvR3S[Ilya Somin] Trump, federal power, and the left – why liberals should help make federalism great againhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/05/trump-federal-power-and-the-left-why-liberals-should-help-make-federalism-great-again/<p>One of the few beneficial effects of Donald Trump&#8217;s unexpected election victory has been a renewed interest in federalism among many on the left. In recent days, prominent liberal legal scholars<a href="https://www.bloomberg.com/view/articles/2016-11-29/sanctuary-cities-are-safe-thanks-to-conservatives"> Noah Feldman</a> and <a href="http://www.nytimes.com/2016/12/03/opinion/sunday/states-rights-for-the-left.html">Jeff Rosen</a>, and political scientist <a href="http://time.com/4584803/donald-trump-states-rights/">Corey Brettschneider</a> have all published notable articles on how state and local governments can use federalism to curb Trump and protect vulnerable minorities. All three argue that liberals should make use of constitutional constraints on federal power traditionally championed by conservatives and libertarians, including the conservative majority on the Supreme Court. <a href="https://www.bloomberg.com/view/articles/2016-11-29/sanctuary-cities-are-safe-thanks-to-conservatives">Feldman&#8217;s article on how federalism can be used to protect sanctuary cities</a> actually makes many of the same points as<a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/?utm_term=.c9d32232e0fa"> my own earlier piece on the same subject</a>. </p>
<p>Some conservatives and libertarians will be tempted to dismiss the new liberal interest in federalism as unprincipled opportunism. Until recently, most liberals forcefully opposed the pro-federalism Supreme Court decisions many now seek to rely on to shield blue states against Trump. The next time there is a liberal Democrat in the White House, perhaps they will do so again. </p>
<p>&#8220;Fair weather federalism&#8221; is indeed a common phenomenon, <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/23/fair-weather-federalism-and-the-blue-lives-matter-act/?utm_term=.fcf51d3c9f5a">on the right as well as the left</a>. Both Democrats and Republicans tend to support expansive federal authority when their side is in power in Washington, and view it more skeptically when they are on the outs. It&#8217;s certainly possible that this will turn out to be just another iteration of the same old story. </p>
<p>But if we want to break this sad pattern, we should spend less time on recriminations over past inconsistencies and more looking for ways to build a durable cross-ideological coalition in favor of stronger enforcement of constitutional limits on federal power. In this context, it is important to recognize that newfound liberal interest in federalism is not solely a result of their fear of Trump. In recent years, some on the left have <a href="https://ssrn.com/abstract=2876696">shown a greater openness to setting limits on federal power</a>, and scholars such as<a href="http://www.democracyjournal.org/24/a-new-progressive-federalism.php?page=1"> Heather Gerken</a> have pointed out that state and local governments now often protect vulnerable minorities better than Washington does.</p>
<p>Liberals could potentially build on these ideas to use federalism as a bulwark against Trumpian abuses. Their chances of succeeding in this endeavor, however, are likely to be greater if they can form a coalition with at least some like-minded conservatives and libertarians. A cross-ideological case for federalism is more likely to prevail in court challenges to Trump policies (which are likely to be heard a Supreme Court with a conservative majority), and more likely to succeed in the political arena as well. </p>
<p>If Trump attempts to implement the populist/nationalist agenda he campaigned on, there might be more opportunities for such alliances than in the past. In addition to drawing opposition on the left, the Trumpist agenda on constitutional and other issues also <a href="https://originalistsagainsttrump.wordpress.com/">includes many elements inimical to libertarians and a good many constitutional conservatives</a> &#8211; myself <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/03/hillary-clinton-is-still-the-lesser-evil/?utm_term=.6ac9cc7be5b6">most definitely included</a>. Many of us have been arguing for tighter enforcement of constitutional limits on federal power for many years, and would welcome greater cross-ideological cooperation on that front. </p>
<p>A good many liberals are understandably hesitant to commit to enforceable limits on the scope of federal power because of a fear that doing so might inhibit federal efforts to protect racial, ethnic, and other minorities against state and local oppression. But even very robust federal antidiscrimination efforts do not require <a href="https://ssrn.com/abstract=916965">virtually unlimited federal power to regulate anything that might have some effect on the economy</a>, or <a href="http://constitutioncenter.org/interactive-constitution/articles/article-i/the-spending-clause-by-ilya-somin/clause/40">nearly unconstrained federal authority to use conditional grants to pressure states and localities to do their bidding</a>. Principled liberals can favor broad federal authority to protect minority groups under the Fourteenth Amendment, while simultaneously enforcing tighter limits on Washington&#8217;s power in other areas. </p>
<p>As the Trump agenda suggests, federal power that has few or no constraints across the board can actually be a menace to minority groups. Other things equal, <a href="http://volokh.com/posts/1237260088.shtml">oppressive federal policies may actually be even more dangerous than comparable state and local ones</a>. Federal policies affect more people, and are <a href="https://ssrn.com/abstract=2160388">more difficult to escape by &#8220;voting with your feet&#8221; in favor of more tolerant jurisdictions</a>.</p>
<p>It would be naive to expect left and right to reach a complete consensus on constitutional federalism anytime soon. There are still many obstacles to cross-ideological cooperation on these issues. Some liberals will continue to support nearly unconstrained federal power. All too many on the right will back Trump&#8217;s policies even when they go against their previous commitments on constitutional issues. And, obviously, there will be continued disagreements over interpretative methodology, such as longstanding conflict between originalism and living constitutionalism (though the former has attracted some <a href="http://www.virginialawreview.org/volumes/content/laying-claim-constitution-promise-new-textualism">new left-wing support</a> in recent years). </p>
<p>But, in the wake of Trump, perhaps there can at least be broader agreement that there should be serious, judicially enforceable limits on federal power to coerce state governments (whether directly or through conditional grants), and on federal authority to regulate private activities that are not closely connected to interstate commerce. These, after all, are exactly the tools that a Trump-led GOP could potentially use to break the resistance of dissenting state and local governments. They can also be used to harm immigrants and other minorities in a wide variety of ways, and to <a href="http://www.politico.com/magazine/story/2016/12/jeff-sessions-coming-war-on-legal-marijuana-214501">stifle liberal state policies, such as marijuana legalization</a>.</p>
<p>More generally, recent political history has shown that neither Democrats nor Republicans can expect to achieve uncontested long-term control of the federal government anytime soon. Both sides have to reckon with the likelihood that the other will be in power a substantial proportion of the time. In an age of <a href="http://www.pewresearch.org/packages/political-polarization/">growing polarization </a>and <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/09/this-is-your-brain-on-politics-the-disturbing-growth-of-partisan-bias/">partisan hatred</a>, both left and right have much to fear anytime Congress and the presidency falls under the control of the other &#8211; even if the president in question is not a dangerous demagogue like Trump. </p>
<p>Stronger enforcement of constitutional limits on federal authority cannot fully solve these problems. But by limiting the power available to the ruling party in Washington, it can curb some of the worst potential depredations of each party, and reduce the extent to which each must fear the other. That objective ought to be attractive to a wide range of people who may not otherwise agree on much else. Perhaps, together, we can help make American federalism great again.</p>Ilya SominMon, 05 Dec 2016 19:38:55 +0000XN5sy3fDAjmp4O4N[Eugene Volokh] Careful with the props for your Bill of Rights quizzeshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/05/careful-with-the-props-for-your-bill-of-rights-quizzes/<p>From <i>State v. Lampela</i>, decided Friday by the Ohio Court of Appeals:</p>
<blockquote><p>Put-In-Bay is a Lake Erie island located in Ottawa County. It has only 400 permanent residents, but it is a major tourist attraction in the summer, drawing approximately one to one-and-a-half million visitors. During the wintertime, Put-In-Bay maintains only three full-time law enforcement officers. During the summer months, however, the police department increases its staff to about 45-50 seasonal officers.</p>
<p>Robert D. Lampela was employed with the Put-In-Bay police department from 1999 through 2015, and served as its chief from 2002 until his termination. On February 27, 2015, he was charged with &#8230; aggravated menacing &#8230; in connection with an incident in which he removed his firearm from its holster to get the attention of two of his subordinates while quizzing them on the amendments to the U.S. Constitution&#8230;. [T]he trial court found Lampela not guilty, but it convicted him of disorderly conduct, which the court characterized as a lesser-included offense&#8230;.</p>
<p>The incident at issue occurred on March 10, 2010. Lampela attended a &#8220;state of the Island&#8221; address with his two subordinates, Sergeant Jeffrey Herold, who was employed by the department from 2004 until 2012, and Corporal Matthew Plesz, who was employed there from 2008 until 2011. Lampela, Herold, and Plesz retreated to the department&#8217;s bunkhouse after the address. They sat on the couches there and discussed the address. Herold and Plesz had apparently been worried for some time about whether Lampela would arbitrarily fire them. Because of this fear, they made it a habit to secretly record their interactions with Lampela. Herold recorded their conversation that evening.</p>
<p>Due to the department&#8217;s need for numerous seasonal police officers, it tended to hire brand-new officers straight out of the police academy. Lampela was outspoken in his belief that it was his obligation to train these new officers. To that end, he often quizzed them on the Bill of Rights, sometimes at odd times. That is what happened on the evening in question.</p>
<p>That night, after talking for about two hours, Lampela asked Herold, &#8220;What is the Second Amendment?&#8221; Herold was silent. Lampela removed his gun from its holster, dropped the magazine, racked the round out of the chamber, pointed the weapon up, and shouted, &#8220;What&#8217;s the Second Amendment to the Constitution, Herold?&#8221; Herold then responded, &#8220;The right to bear arms.&#8221; This is the conduct which led the state to charge Lampela with aggravated menacing, however, the charge was not filed until February of 2015, following a broader investigation of the police department.</p>
<p>This broader investigation of the Put-In-Bay police department was conducted by the Ottawa County sheriff&#8217;s department and began in 2014, after the sheriff&#8217;s office received a variety of complaints ranging from accusations that officers were targeting particular citizens to allegations that officers gained unlawful entry into a building to tamper with security cameras&#8230;.</p>
<p>Lampela&#8217;s explanation was that he used the unholstered gun to serve as a visual cue to impress upon Herold that the Second Amendment affords the right to bear arms. He insisted that he rendered the gun safe by removing the magazine and racking the round out of the chamber, and he maintained that he never pointed the gun at anyone. Ultimately, the trial court found Lampela not guilty of aggravated menacing, but guilty of disorderly conduct, purportedly a lesser-included offense&#8230;.</p>
<p>An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, &#8230; be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense&#8230;. [Text moved: [T]he focus of [this test] is whether the accused is put on notice that an indictment for an offense could also result in prosecution of the lesser-included offense.]</p>
<p>The aggravated menacing statute provides that &#8220;No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person &#8230;.&#8221; The disorderly conduct statute at issue here provides that &#8220;No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: &#8230; [c]reating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.&#8221;</p>
<p>[D]isorderly conduct under (A)(5) of the statute does contain an element that aggravated menacing does not. &#8220;[T]he absence of a lawful and reasonable purpose&#8221; is, indeed, an element of the offense. While there are defenses to aggravated menacing which address an alleged lawful and reasonable purpose for the offender&#8217;s conduct [such as self-defense[, it is not an element of the offense &#8230;. Because disorderly conduct under (A)(5) of the statute contains an additional element not found in the aggravated menacing statute, it cannot be deemed a lesser-included offense&#8230;.</p></blockquote>
<p>Chief Lampela was also charged with &#8220;dereliction of duty and falsification in connection with his alleged failure to investigate a report of sexual assault by one of its seasonal officers,&#8221; as well as falsification as to the constitutional quiz incident, but he was acquitted as to the first and charges were dropped against him as to the second; I mention this because it might explain why the prosecutor brought the menacing charges as well. Lampela was <a href="http://www.toledoblade.com/Police-Fire/2016/09/19/Put-in-Bay-police-chief-quits-after-one-year-on-the-job.html">fired in August 2015</a> but was appealing that decision (at least as of September 2016).</p>Eugene VolokhMon, 05 Dec 2016 16:54:33 +0000sgkcVrPnhdRrLzHI[Eugene Volokh] Short Circuit: A roundup of recent federal court decisionshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/05/short-circuit-a-roundup-of-recent-federal-court-decisions-32/<p>(Here is the latest edition of <a href="http://ij.org/about-us/shortcircuit/" target="_blank">the Institute for Justice’s weekly Short Circuit newsletter</a>, written by John Ross.)</p>
<blockquote>
<ul>
<li>At Congress’s urging, postal officials take steps to close 229 mail-processing facilities. Postal workers union files complaint with Postal Regulatory Commission: The closings (and other changes) significantly slowed mail delivery, thus violating service standards and depriving Americans of a service to which they’re legally entitled. PRC: The standards were not violated. Complaint dismissed. <a href="http://iam.ij.org/2gSh3VJ">D.C. Circuit</a>: Which wasn’t arbitrary or capricious.</li>
<li><a href="http://www.ca4.uscourts.gov/Opinions/Published/166026.P.pdf">Fourth Circuit</a>: North Carolina law that has the effect of banning sex offenders whose victims were adults from churches that hold youth activities is not narrowly tailored to the state’s interest in protecting children. Moreover, the state’s ban on offenders at or near places where minors gather regularly is so vague that offenders and law enforcement cannot know what areas are off limits.</li>
<li>Man’s wife has child by another man: Princeton, Tex.’s, police chief. <a href="http://www.ca5.uscourts.gov/opinions/unpub/16/16-40399.0.pdf">Fifth Circuit</a>: No evidence the chief orchestrated harassment of the man, who (allegedly) assaulted his now-former wife and repeatedly violated a court order to not contact her.</li>
<li>Left in Orange County, Tex., jail detox chamber surrounded by uneaten food and human waste for four days, man turns purple and dies. Staff: Though official policy is to not keep people in the chamber for much more than eight hours, we routinely left them for days at a time. <a href="http://www.ca5.uscourts.gov/opinions/pub/15/15-41432-CV0.pdf">Fifth Circuit</a>: The jury’s verdict, finding the county liable, stands.</li>
<li>Milwaukee police track down parole violator by using a Stingray, a device that can locate a cell phone, eavesdrop on conversations, intercept text messages, and more. <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D11-23/C:15-2443:J:Easterbrook:aut:T:fnOp:N:1868256:S:0">Seventh Circuit</a>: They had warrants for the guy. Conviction affirmed. Dissent: Police were authorized to obtain location data from the phone company — not from a Stingray. Moreover, they failed to divulge their use of the device to the courts and defense counsel. We can’t know if there’s been a Fourth Amendment violation on this record.</li>
<li>Police summoned to Tucson, Ariz., home where woman is hacking at tree with kitchen knife. They observe the woman walk toward another woman with the knife. An officer shoots her (through a chain-link fence) four times; she survives. Other woman: Police did not give her much warning, and she posed no threat. <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/28/14-15059.pdf">Ninth Circuit</a>: A jury should decide if the officer used excessive force.</li>
<li>In 1987 or thereabouts, man’s Social Security card is stolen, sold to (presumably) defendant. Thereafter, man’s tax refunds are stolen; his driver’s license is suspended because of (presumably) defendant’s DUIs; his wages are garnished and his benefits are halted because of (presumably) defendant’s failure to pay child support. Defendant is caught in 2014, but his real identity remains unknown. <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/29/15-10063.pdf">Ninth Circuit</a>: Defendant’s identity theft conviction stands.</li>
<li>Congregant at illegal Christian “house church” in China arrested, taunted, released after fine of over half his annual salary is paid, and threatened with prison should he continue to congregate. Immigration judge: His account is credible but does not establish that he’ll be persecuted if returned to China. No asylum. <a href="http://www.ca10.uscourts.gov/opinions/15/15-9540.pdf">Tenth Circuit</a>: Petition for review denied.</li>
<li>Allegation: Douglasville, Ga., officer alleges abuses of minorities by fellow officers. He’s fired. During appeal, officers tail him as he goes about his business. A supervisor advises officers that he is dangerous to law enforcement and that officers should “act accordingly.” In the news earlier that week: A fired Los Angeles officer shooting five police. <a href="http://media.ca11.uscourts.gov/opinions/pub/files/201511627.pdf">Eleventh Circuit</a>: No qualified immunity for the supervisor.</li>
<li>Trial over Hollywood, Fla., man’s role in deadly armed robbery takes place over a year after his indictment — well past the 70-day deadline required by the Speedy Trial Act. <a href="http://media.ca11.uscourts.gov/opinions/pub/files/201312044.pdf">Eleventh Circuit</a>: The district court failed to explain why the delay was in the interest of justice, so his life sentence is overturned. Remanded so the district court can determine whether the gov’t can file new charges.</li>
<li>Man cusses at undercover Palm Beach County, Fla., officer sitting in undercover vehicle (that the officer unwittingly parked inconsiderately). Officer: When I identified myself, he attacked me — I only shot him dead after he ignored my warnings. <a href="http://media.ca11.uscourts.gov/opinions/unpub/files/201610614.pdf">Eleventh Circuit</a>: Could be that’s not what happened.</li>
<li>Bus driver takes school kids on unscheduled trip from San Diego to Tijuana, Mexico. Subsequently, he gets a job driving for local transit agency in California. His doctor intervenes with the DMV when he applies to drive school buses again. Driver: Which resulted in the loss of my transit agency job. <a href="http://www.courts.ca.gov/opinions/documents/A138952.PDF">California Court</a>: The driver’s suit against the doc (and her employer, San Francisco) is barred by litigation privilege.</li>
<li>Man hangs a black dummy from a noose in his front yard, terrifying his African-American neighbors. <a href="http://www.courts.state.va.us/opinions/opncavwp/2039153.pdf">Virginia Court</a>: The First Amendment protects his right to communicate his (avowedly) racist views, but the display is a “true threat” and so not protected speech.</li>
</ul>
<p>In Colorado, people who have their criminal convictions vacated must petition the gov’t to have any fees they paid as a result of their conviction returned. The practice flips the presumption of innocence on its head: Even without a valid conviction, Colorado presumes petitioners are guilty and places the burden on them to prove otherwise. The Supreme Court will soon weigh in on this state of affairs. <a href="http://ij.org/wp-content/uploads/2016/12/Nelson-v.-Colorado-Amicus_FINAL-IJ083128xA6322.pdf">Click here to read</a> IJ’s amicus brief on the history and tradition of the presumption of innocence.</p>
<p>Prefer to receive Short Circuit via e-mail? <a href="http://ij.org/about-us/shortcircuit/">Subscribe here</a>!</p></blockquote>Eugene VolokhMon, 05 Dec 2016 16:26:04 +00002UdXQFMKKLZZi4wV[Will Baude] Donald Trump: The constitutional law examhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/05/donald-trump-the-constitutional-law-exam/<div id="attachment_43713" style="width: 970px" class="wp-caption aligncenter"><img class="size-full wp-image-43713" src="http://img.washingtonpost.com/rf/image_960w/2010-2019/WashingtonPost/2016/11/21/Production/Daily/Style/Images/306265744_0-5.jpg" alt="Donald Trump, 2016 Republican presidential nominee, speaks during a campaign rally at the Venetian Hotel and Casino in Las Vegas, Nevada, U.S., on Saturday, Oct. 30, 2016. An ABC News/Washington Post tracking poll released Sunday showed 46 percent of voters supporting Clinton and 45 percent supporting Donald Trump, although Clinton still appeared to have the clearest path to the 270 electoral college votes needed to win the presidency. Photographer: Eric Thayer/Bloomberg" width="960" height="640" /><p class="wp-caption-text">Donald Trump speaks in Las Vegas on Oct. 30. (Eric Thayer/Bloomberg)</p></div>
<p>Back in fall 2015, I taught constitutional law to a wonderful class of students. The first and longest question was one that might have seemed humorous at the time, but various things that have happened over the past two months keep bringing it to mind, so I thought it might be worth sharing.</p>
<p>Here it is, as originally delivered:</p>
<blockquote><p><strong>Question 1. (45 total points, 2250 words) </strong></p>
<p>It is January, 2017, and Donald Trump has just been elected President of the United States. Trump is set for the inauguration at noon on January 20th (see U.S. Const. amdt. XX, sec. 1). That morning, at 9 a.m., Ford Motor Company announces that it has secretly moved substantial parts of its operations to Brazil, to take advantage of lower labor costs, laxer regulation, and to avoid retaliation from the soon-to-be President.</p>
<p>Trump is furious. After taking the oath of office (see U.S. Const. art. II, sec. 1.), now-President Trump announces his revenge. He says:</p>
<blockquote><p>I promised to make America great again, and Ford has just shown us all that they are disloyal. Well I’m not going to let them do that. Ford has 48 hours to relocate their operations back to the United States where they belong. If they don’t, well, I intend to use this new ‘executive power’ I just got. After 48 hours, I am blocking all of their new cars at the border unless they pay a 350% tax on the sales price of every car they bring into the country. Let’s see how they like that.</p></blockquote>
<p>48 hours go by, and Ford does not change its mind. Instead, the company focuses on selling cars to other countries throughout Latin America and does not attempt to ship any cars across the border into the United States.</p>
<p>President Trump is still not happy, and he has realized that he has other weapons in his arsenal – literally. On January 25th, he orders a nighttime bombing campaign against a Ford warehouse in Brazil. The warehouse is destroyed, but nobody is hurt. “That was a warning shot,” he announces. “But I’m ordering another bombing on their Brazilian facilities every month until Ford comes back. Nobody laughs at us.”</p>
<p>Alarmed, Congress immediately passes a “concurrent resolution” under Section 5(c) of the War Powers Resolution, requiring all U.S. forces to be removed from Brazil and from any location within 1500 miles of Brazil. Pursuant to the War Powers Resolution, the resolution is not presented to President Trump for his signature/veto. [Recall that the War Powers Resolution is at pp. 428-430 of the textbook, if you need it.]</p>
<p>“They can’t do that!” President Trump responds.</p>
<p><strong>Part A. (25 points) </strong></p>
<p>Fearful about what will happen next, on February 14, Ford files a lawsuit in the federal district court in Washington, D.C., challenging the tax and bombing, and asking the Court to halt any future attacks on their facilities in Brazil.</p>
<p>You are a new law clerk for Judge Tanya Rogers, who is hearing the case. She asks you for a quick bench memo, addressing: (1) whether the case is justiciable; (2) the legality of the tax; (3) the legality of the Jan. 25th bombing; as well as (4) whether Trump is allowed to keep bombing Ford in the future.</p>
<p>What do you say?</p>
<p><strong>Part B. (10 points) </strong></p>
<p>Judge Rogers orders the bombing to stop (either despite, or because of, your bench memo in Part A). President Trump is not impressed. Rather than appeal the decision, he gives a press conference, saying: “This judicial decision is an outrage and a violation of the Constitution. Judicial activism! Maybe I have to obey Supreme Court decisions – I’m not sure about that – but the Constitution definitely doesn’t require me to obey some lower court judge! Full speed ahead!”</p>
<p>Judge Rogers comes back to you, alarmed and puzzled. “I’m not really sure what I can do about this, but I do want to know… is he right?”</p>
<p>What do you say?</p>
<p><strong>Part C. (10 points) </strong></p>
<p>Increasingly alarmed, Congress decides to step in again. The House of Representatives votes to begin impeachment proceedings for Trump’s various actions in Parts A and B. Also, for good measure, Congress passes a statute imposing a 100% income tax on Trump’s presidential salary for the rest of his term. (Trump vetoes the tax bill; Congress overrides his veto by 2/3 vote.)</p>
<p>This time, President Trump decides to avail himself of the courts, challenging both the impeachment proceeding and the tax. Judge Rogers comes back to you, shaking her head. “Do I have to take either of these challenges seriously?”</p>
<p>What do you say?</p></blockquote>Will BaudeMon, 05 Dec 2016 14:14:21 +0000z20H7YgOFBF96mUL[Will Baude] The only thing wrong with “Gilmore Girls: A Year In The Life”http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/04/the-only-thing-wrong-with-gilmore-girls-a-year-in-the-life/<p>That tiny fraction of you who also read my defunct law-school blog may remember my disproportionate enthusiasm for &#8220;Gilmore Girls.&#8221; (Though it turns out I may not be the <i>only</i> Supreme Court nerd to also be a &#8220;Gilmore Girls&#8221; nerd, as evidenced by <a href="https://object.cato.org/sites/cato.org/files/wp-content/uploads/walker_v_confed_vets_merits.pdf">this Supreme Court amicus brief</a> by Ilya Shapiro of the Cato Institute.) In any event, I therefore made it a high priority to watch the new Netflix revival of the show, <a href="https://www.netflix.com/title/80109415">&#8220;Gilmore Girls: A Year in the Life.&#8221;</a> [BTW, <strong>modest spoilers will ensue</strong> throughout the rest of this post.]</p>
<p>There have been plenty of mixed reviews. <a href="https://www.washingtonpost.com/news/arts-and-entertainment/wp/2016/11/28/gilmore-girls-a-year-in-the-life-10-questions-we-still-have-after-the-revival/?utm_term=.558112372276">Here are ten somewhat skeptical questions</a> from our friends on the Arts &#038; Entertainment pages. <a href="http://whatwouldphoebedo.blogspot.com/2016/11/rory-gilmores-writing-career.html">Here is Phoebe Maltz Bovy</a> on Rory Gilmore&#8217;s lackluster and spoiled writing career. <a href="http://foureyedgremlin.blogspot.com/2016/11/32-is-new-23-gilmore-girls-kvetching.html">Here is pseudonymous blogger &#8220;Miss Self-Important&#8221;</a> worrying (among other things) that the revival is just &#8220;a series of cameos and inside-jokey flashbacks to the original series.&#8221; And here is <a href="https://lareviewofbooks.org/article/gilmore-girls-year-life/#!">an excellent essay in the L.A. Review of Books</a> arguing that the best thing about the revival is its failure: &#8220;the way nostalgia goes sour and you can’t actually go home again, the way the story&#8211;as it should have been told&#8211;can’t be.&#8221;</p>
<p>Well say what you will about failure, but I am a sucker for sequels, and so I still basically liked it. The third of the four ninety-minute episodes was basically unbearable, but the other three combined glimpses of the charm of the original with new developments to both satisfy and frustrate the fans. </p>
<p>It&#8217;s true that Rory&#8217;s career is now disappointing, that the ending is ambiguous at best, and that the more one sees of Rory and Lorelai and Stars Hollow the more one sees not virtue and utopia but a bleakly prolonged adolescence. But all of those seeds were planted in the original series too, for those who had eyes to see. </p>
<p>Indeed, I&#8217;ve been rewatching the original series at the same time as the revival has come out, and I&#8217;ve found myself much more interested in the bad things about the seeming-heroes of the series and the good things about the seeming-villains. <a href="http://www.vulture.com/2016/11/paris-geller-in-praise-of-her-anger.html">Here, for instance, is the positive case for Paris Geller</a>, Rory&#8217;s frenemesis, and <a href="http://www.vanityfair.com/hollywood/2016/11/gilmore-girls-netflix-emily-gilmore-kelly-bishop-review">here is the case for grandmother Emily Gilmore</a> as the real hero of the show. The flaws in the show&#8217;s main characters are not the same thing as flaws in the show.</p>
<p>My friend Josh Chafetz floated the following interesting theory on social media (with the caution that it was a &#8220;crazy, 1/8-baked hypothesis&#8221;): Whether one liked &#8220;Gilmore Girls: A Year in the Life&#8221; is positively correlated with whether one liked &#8220;Star Wars: The Force Awakens.&#8221; Both sequels seem guilty of the recycling of motifs and narrative repetition, which could sit uneasily with those who want to see a progressive arc out of history.</p>
<p>I liked this theory, but I had a very different reaction. I basically liked the Gilmore Girls revival while <a href="http://newramblerreview.com/book-reviews/film-media-studies/star-wars-destroyed">I basically refuse to acknowledge that &#8220;The Force Awakens&#8221; takes place in the Star Wars universe</a>. For me, the big difference between the two is the extent of their fidelity to their original materials. &#8220;A Year in the Life&#8221; recycled motifs in a way that was incredibly faithful to the original material, while &#8220;The Force Awakens&#8221; recycled them in a way that did violence to the original material. (I&#8217;m speaking of the material itself rather than authorial intent, but it&#8217;s still probably not a coincidence that &#8220;A Year in the Life&#8221; was made by the original creator of the show, while &#8220;The Force Awakens&#8221; was made by an entirely new team with no relationship to the original creator.)</p>
<p>And that brings me to my one real beef with &#8220;Gilmore Girls: A Year in the Life.&#8221; A minor MacGuffin in the revival is the plan for Stars Hollow to finally switch off of an outdated septic system to the sewer system. This provides a minor plot device for town politics and must have seemed to the creators like a nice reminder of the quaint low stakes of municipal governance in Stars Hollow.</p>
<p>But you know what? Stars Hollow <i>already switched from septic to sewer years ago,</i> and I found myself repeatedly screaming this fact at the screen. From <a href="http://www.gilmoregirls.org/eguide/transcripts/episode16.html">Season 1, Episode 16</a> (&#8220;Star-Crossed Lovers and Other Strangers&#8221;):</p>
<blockquote><p>DEAN: Man, I thought Christmas was a big deal around here.</p>
<p>RORY: Well, this is a town that likes the celebrating. Last year we had a month long carnival when we finally got off the septic tank system.</p>
<p>DEAN: A month long? You&#8217;re kidding.</p>
<p>RORY: No. There were rides and a petting zoo and balloon animals and a freak show.</p>
<p>DEAN: Uh huh. Okay, you almost had me going there for a second.</p>
<p>RORY: Well we did have a ribbon cutting ceremony.</p></blockquote>
<p>It turns out that I can tolerate the bleak turns in Rory&#8217;s life and career, and the way she&#8217;s gone from charming to cruel; I can tolerate the lack of communication in the Luke/Lorelai relationship; I can tolerate Star&#8217;s Hollow&#8217;s descent from eccentric to dystopia. But the one thing I wanted in exchange for all of that was narrative continuity, and alas, I didn&#8217;t quite get it.</p>Will BaudeSun, 04 Dec 2016 23:52:20 +0000gnYYKUw2HpPAKulZ[Ilya Somin] Hollywood and the Constitutionhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/04/hollywood-and-the-constitution/<p><img class="aligncenter size-full wp-image-44025" src="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/12/Constitution-e1480753518953.jpg" alt="constitution" width="262" height="192" /></p>
<p>As Eugene Volokh <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/03/constitutional-plot-twists/?utm_term=.76f7c4532140">notes</a>, <em>Time</em> recently published an article quoting various legal scholars on possible film and TV plots involving constitutional crises:</p>
<blockquote><p>If James Madison were alive today, he might be working as a screenwriter in Hollywood.</p>
<p>TV dramas can’t get enough of obscure constitutional scenarios. On <em>Scandal</em>, an unsuccessful assassination attempt left the vice president temporarily in charge of the Oval Office. On <em>Veep</em>, a tie in the Electoral College sent the election to the House of Representatives. And on <em>Designated Survivor</em>, the Secretary of Housing and Urban Development was sworn in after a terrorist attack.</p>
<p>And that’s not to mention just about everything on <em>House of Cards</em>.</p>
<p>But while these plotlines may seem a bit over the top, legal scholars say they are a useful way to tease out some of the weak points in the U.S. Constitution for a broader audience. Given the events of recent years—an impeachment, the Supreme Court intervening in a crucial election recount and recent talk of contested conventions and faithless electors—they may not be as implausible as they sound.</p>
<p>“It may be one of those areas where reality is getting a little bit ahead of fiction,” notes Ilya Somin, constitutional law professor at George Mason University.</p>
<p>With that in mind, TIME talked with legal experts about their favorite constitutional scenarios.</p></blockquote>
<p>In the Time<em> </em>article, Ryan Beckwith skillfully outlines several possible constitutional crises that would both make good movie plots and have at least some plausible chance of occurring in real life. As he notes, several movies and TV shows have already addressed similar constitutional issues. But I fear that Hollywood may be focusing our attention in the wrong place. It is entirely understandable that TV and film producers would focus on scenarios that make for good entertainment. But I am skeptical that these kinds of sudden crises centered on discrete provisions of the Constitution are the perils we most need to worry about.</p>
<p>When I spoke to Beckwith, I instead emphasized the possibility that the real danger to constitutional democracy in the United States is not a dramatic, sudden crisis but a gradual deterioration of constitutional norms. For example, public and elite commitment to free speech, separation of powers and other safeguards against abuse of power could gradually fray, resulting in a process of<a href="http://www.journalofdemocracy.org/sites/default/files/Foa%26Mounk-27-3.pdf"> democratic &#8220;deconsolidation.&#8221;</a> Unscrupulous presidents could further concentrate power in their hands, often in ways that don&#8217;t immediately set off alarm bells. They might, for example, <a href="https://www.washingtonpost.com/news/wonk/wp/2016/12/02/why-trumps-carrier-deal-is-bad-for-america/">undermine the rule of law</a> by taking actions that are &#8212; at least initially &#8212; actually popular. <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/09/this-is-your-brain-on-politics-the-disturbing-growth-of-partisan-bias/?utm_term=.a0fa9f846bce"> Growing partisan bias</a> might extend the already worrisome pattern of both Democrats and Republicans excusing abuses committed by presidents of their own party.</p>
<p>The public is likely to notice and react negatively to a sudden, dramatic attack on constitutional democracy of the sort that makes for a good Hollywood plot. It is much more likely to overlook gradual deterioration &#8212; especially if the latter is packaged with popular policies.</p>
<p>Both George W. Bush and Barack Obama have done a good deal to undermine constitutional limits on federal power, often with the support of their respective parties. For example, Obama has<a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/30/unconstitutional-war-against-isis-expands-to-include-ground-combat-by-us-forces/?utm_term=.062bfff2654c"> twice initiated wars</a> without getting <a href="http://time.com/3326689/obama-isis-war-powers-bush/"> congressional authorization</a> required by the Constitution and the War Powers Act. The election of Donald Trump &#8212; a man with <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/29/trump-and-the-constitution/?utm_term=.9c05c002f60c">little if any regard for constitutional principles</a> &#8212; is hardly a reassuring sign that this pattern will reverse itself. At the very least, we must be more vigilant about the gradual deterioration of constitutionalism than most Americans have been over the past 15 years.</p>
<p>Slow-motion threats to constitutional norms do not make for as good a movie plot as a sudden crisis. I don&#8217;t blame the author of the Time article for largely ignoring such scenarios. Nonetheless, both Hollywood and the general public would do well to give this danger more consideration.</p>Ilya SominSun, 04 Dec 2016 16:05:14 +0000qv11K3MEDyFC4rPX[Eugene Volokh] Constitutional plot twistshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/03/constitutional-plot-twists/<p>Time&#8217;s <a href="http://time.com/4587936/constitution-hollywood/">Ryan Teague Beckwith </a>has some interesting ideas for legal plot twists that Hollywood might consider. A sample:</p>
<blockquote><p>Article III, Section 1</p>
<p>Suggested title: Good Behaviour</p>
<p>Suggested plot: After her husband dies, a Supreme Court justice goes through a midlife crisis, doing Jell-O shots with her law clerks, attending Burning Man and going on endless Tinder dates.</p>
<p>Dream casting: Julia Louis-Dreyfus</p>
<p>The constitutional background: Article III, Section 1. The Constitution grants lifetime tenure to Supreme Court justices and other federal judges, noting only that they “shall hold their offices during good Behaviour.”</p>
<p>What scholars think: “The Court is not really very dramatic,” Wexler told TIME in an email. “I’ve always thought … that the way to go with a TV show about the Court is comedy. A <em>Veep</em> for the Court, in other words.”</p>
<p>Spoiler alert: Only one Supreme Court Justice has ever been impeached, but he was acquitted in the Senate.</p>
<p>Read More: [Jay] Wexler’s novel, <em>Tuttle in the Balance</em>, explores this very scenario. (He’d like us to note that film rights are still available.)</p></blockquote>Eugene VolokhSun, 04 Dec 2016 00:38:58 +0000UbKVvrqToZywumxx[Jonathan H. Adler] Weekend reading: defending the liberal project in an age of post-truth politicshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/03/weekend-reading-defending-the-liberal-project-in-an-age-of-post-truth-politics/<p>Just a quick post to recommend a few short pieces on the need to defend (and the difficulty of defending) the liberal project of sustaining a pluralistic society of free and responsible individuals.</p>
<ul>
<li>Will Wilkinson, <a href="https://niskanencenter.org/blog/revitalizing-liberalism-age-brexit-trump/">&#8220;Revitalizing Liberalism in the Age of Brexit and Trump&#8221;</a></li>
<li>Jacob T. Levy, <a href="https://niskanencenter.org/blog/authoritarianism-post-truth-politics/">&#8220;Authoritarianism and Post-Truth Politics&#8221;</a></li>
<li>Conor Friedersdorf, <a href="https://www.theatlantic.com/politics/archive/2016/12/how-stigma-sows-seeds-of-its-own-defeat/509273/">&#8220;How Stigma Sows the Seeds of Its Own Defeat&#8221;</a></li>
<li>Preston Stovall, <a href="http://heterodoxacademy.org/2016/11/28/on-the-role-of-the-public-intellectual-in-the-united-states/">&#8220;On the Role of the Public Intellectual in the United States&#8221;</a></li>
</ul>
<p>And on this general subject, here&#8217;s F.A. Hayek from &#8220;The Constitution of Liberty&#8221;:</p>
<blockquote><p>If old truths are to retain their hold on men’s minds, they must be restated in the language and concepts of successive generations. What at one time are their most effective expressions gradually become so worn with use that they cease to carry a definite meaning. The underlying ideas may be as valid as ever, but the words, even when they refer to problems that are still with us, no longer convey the same conviction; the arguments do not move in a context familiar to us; and they rarely give us direct answers to the questions we are asking. This may be inevitable because no statement of an ideal that is likely to sway men’s minds can be complete: it must be adapted to a given climate of opinion, presuppose much that is accepted by all men of the time, and illustrate general principles in terms of issues with which they are concerned.</p></blockquote>
<p>The challenge to articulate and defend liberal principles is as great as ever.</p>Jonathan H. AdlerSat, 03 Dec 2016 17:27:57 +0000EqfkeVIFjpQ0Jvu0[Ilya Somin] New Zealand legalizes compensation for organ donorshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/03/new-zealand-legalizes-compensation-for-organ-donors/<div id="attachment_44011" style="width: 910px" class="wp-caption aligncenter"><img src="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/12/New-Zealand-flag-e1480731958802.png" alt="Flag of New Zealand." width="900" height="450" class="size-full wp-image-44011" /><p class="wp-caption-text">Flag of New Zealand.</p></div>
<p>The government of New Zealand <a href="http://www.scoop.co.nz/stories/GE1612/S00001/compensation-for-live-organ-donors.htm">recently passed a law </a>legalizing compensation for organ donors:</p>
<blockquote><p>“The Bill effectively removes what is known to be one of the single greatest barriers to live organ donation in NZ,” [Kidney New Zealand chief executive Max] Reid says. “Until now the level of financial assistance (based on the sickness benefit) has been insufficient to cover even an average mortgage repayment, and the process required to access that support both cumbersome and demeaning. The two major changes that this legislation introduces – increasing compensation to 100% of lost income, and transferring responsibility for the management of that financial assistance being moved from WINZ to the Ministry of Health – will unquestionably remove two major disincentives that exist within the current regime.”</p></blockquote>
<p>The compensation is<a href="http://offsettingbehaviour.blogspot.com/2016/12/compensating-organ-donors.html"> limited to offsetting lost income and expenses</a> and does not allow full-fledged organ markets. But it is nonetheless a major step towards increasing incentives for organ donation, which could potentially save many lives. New Zealand-based economist Eric Crampton has a more detailed the discussion of the bill and its history <a href="http://offsettingbehaviour.blogspot.com/2016/12/compensating-organ-donors.html">here</a>.</p>
<p>The United States would do well to follow New Zealand&#8217;s example, and even go further towards full legalization of organ markets. As economist<a href="http://marginalrevolution.com/marginalrevolution/2016/12/new-zealand-compensate-organ-donors.html"> Alex Tabarrok</a> points out, doing so <a href="http://onlinelibrary.wiley.com/doi/10.1111/ajt.13490/full">might save thousands of lives every year, and save even more people from having to spend long periods of on kidney dialysis</a> (a debilitating treatment that greatly impairs normal life, and is very costly to boot). </p>
<p>In the past, I have outlined <a href="http://volokh.com/2012/06/14/making-the-case-for-organ-markets/">the case for legalizing organ markets</a> in greater detail, and addressed a variety of objections, such as <a href="http://volokh.com/2013/11/01/poor-rationale-banning-organ-markets/">claims that organ markets would unjustly &#8220;exploit&#8221; the poor</a>, and a<a href="http://www.amazon.com/Markets-without-Limits-Commercial-Interests/dp/0415737354/">rguments that they would lead to dangerous &#8220;commodification&#8221; of the body and ethical corruption.</a> Most recently, I have <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/12/ethicists-make-the-case-for-bone-marrow-transplantation-markets/?utm_term=.af0b1852f8d7">commented </a>on a <a href="http://www.donationethics.com/">letter defending bone marrow markets </a>signed by a cross-ideological group of leading ethicists. </p>
<p>While people can reasonably disagree about how organ markets should be structured and the extent to which they need to be regulated, there is a very strong case for legalizing them in order to save the lives of thousands of innocent people who are otherwise doomed to an early (and often painful) death, and tens of thousands more who must otherwise undergo years of needless suffering. Ultimately, the question is not whether there are objections to organ markets, but whether any of them are weighty enough to justify the infliction of so much death and misery.</p>Ilya SominSat, 03 Dec 2016 15:45:21 +0000qdUa4lleDSNHp20n[Eugene Volokh] Australian judge requires female Muslim witness to testify without a veilhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/02/australian-judge-requires-female-muslim-witness-to-testify-without-a-veil/<p><a href="https://www.theguardian.com/australia-news/2016/dec/01/woman-cannot-give-evidence-in-a-niqab-australian-court-rules">The Guardian (Paul Farrell) reports</a>, and includes <a href="https://www.theguardian.com/world/2016/dec/01/niqab-ruling-the-australian-judges-decision-in-full">the full text of the decision</a>:</p>
<blockquote><p>This is a claim by four plaintiffs for damages for injuries each of them say they sustained during the execution of a search warrant at their home on 18 September 2014. The AFP is the first defendant, and the New South Wales police is the second defendant. Liability is in issue.</p>
<p>The first plaintiff is the wife of the second plaintiff, and the mother of the other two plaintiffs. She is a religious Muslim. She wears what I understand is a niqab; that is, her whole body, other than her eyes, is covered. Senior counsel for the plaintiffs informed me earlier today that he intended to call the first plaintiff to give evidence. The issue then arose as to whether she should give that evidence with her face covered or uncovered. Just before I adjourned I was told that the first plaintiff refused to give evidence with her face uncovered.</p>
<p>Since I have resumed after lunch, I have offered other courses to the first plaintiff; that her evidence be taken while she is in a remote room. Her face would be uncovered, but she could choose not to see who is watching her to give evidence; and/or I close the court so that only lawyers involved in the proceedings would be in the court. She has decided not to do so.</p>
<p>It is my role to ensure that there is a trial which is fair to all parties. I must balance on the one hand the need to respect the first plaintiff’s religious beliefs. In this case, those beliefs mean that she may choose not to give evidence which could impact on the successful prosecution of her case.</p>
<p>On the other hand, I must take into account whether I would be impeded in my ability to full assess the reliability and credibility of the evidence of the first plaintiff if I am not afforded the opportunity of being able to see her face when she gives evidence. I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed. In some cases the demeanour of a witness may be misleading. However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.</p>
<p>I have only heard the evidence of one of the sons. However, yesterday I asked senior counsel for the plaintiff whether there will be a conflict in the evidence as to what actually occurred, and he replied that there is bound to be. He agreed that I will need to make a finding about whose evidence I prefer.</p>
<p>As the resolution of the likely conflict in the evidence as to exactly what occurred that morning is essential to the determination of the proceedings or the part of the proceedings involving the first plaintiff at least, and the assessment of the weight to be given to the evidence of the first plaintiff is part of that exercise, I have decided that she can only give evidence with her face uncovered. I decline to permit her to give evidence with her face covered.</p></blockquote>
<p>For more on how this issue has been treated in American courts, see <a href="http://www.volokh.com/posts/chain_1166121763.shtml">here</a>. A few quick thoughts:</p>
<p>1. In principle, some religious accommodation in courtrooms may make sense. For instance, many courts bar people from wearing headgear in court, for the sake of courtroom decorum. It makes sense that there be <a href="http://volokh.com/2011/05/06/georgia-judge-not-getting-the-message-on-religious-headgear-in-court/">an exception for religious headgear</a>, since wearing such headgear isn&#8217;t seen as a sign of disrespect. To quote noted conservative Judge Frank Easterbrook,</p>
<blockquote><p>The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement. [EV adds: Federal and state Religious Freedom Restoration Acts, and some state constitutions, likewise mandate such exemptions.]</p>
<p>Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority’s. The best way for the judiciary to receive the public’s respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating.</p>
<p>It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.</p></blockquote>
<p>2. At the same time, some religious accommodation would so interfere with government functioning that requests for such accommodation should be denied. Traditionally, a judge&#8217;s and jury&#8217;s evaluation of a witness&#8217;s facial expressions is seen as an important part of judging the witness&#8217;s credibility. It&#8217;s thus not surprising that, in keeping with this Anglo-American tradition, a judge would insist that the witness show her face, notwithstanding her religious objections.</p>
<p>3. The twist: As I understand it, recent empirical studies suggest that, despite this tradition, people are actually awful at determining a person&#8217;s credibility based on facial expressions; if that&#8217;s so, then there&#8217;s no actual reason to forbid witnesses from wearing veils. The question is how much credence courts should give to those studies, and how much to tradition.</p>Eugene VolokhSat, 03 Dec 2016 01:41:21 +0000k9c8HmTZ7kfhd1J1[Eugene Volokh] The upcoming Trump administration, the Carrier deal and the rule of lawhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/02/the-upcoming-trump-administration-the-carrier-deal-and-the-rule-of-law/<p>Two interesting op-eds in The Post today about President-elect Trump and the Carrier deal. Here&#8217;s an excerpt from <a href="https://www.washingtonpost.com/news/wonk/wp/2016/12/02/give-him-credit-trump-carrier-deal-puts-shareholder-obsessed-ceos-on-notice/">Steven Pearlstein&#8217;s op-ed defending the deal</a>:</p>
<blockquote><p>Now comes Donald Trump &#8212; in the public mind, a successful businessman &#8212; who as the new president, suddenly declares that the [norm of maximizing shareholder value, even when that means sending jobs off-shore] is no longer acceptable, and he intends to do whatever he can to shame and punish companies that abandon their workers. It’s one thing for a company to sustain a few days of bad headlines in the local newspaper when it decides to close a facility. It’s quite another when the president of the United States is not only willing, but from a political point eager, to make a federal case out of it. Suddenly, maximizing shareholder value no longer provides the political and social inoculation that it used to.</p>
<p>Unlike their patron saint, Adam Smith, modern day economists tend to ignore such shifts in social norms because they can’t quantify them in the same way they can quantify trade flows or technological innovation or changes in educational attainment. And if they can’t quantify something, they can’t include it in their complex mathematical models, or even the simpler mental models in their heads of how the economy operates. They assume that social norms change in response to economic fundamentals rather than the other way around.</p>
<p>Donald Trump understands better. He knows that he and his new commerce secretary will have to engage in a few more bouts of well-publicized arm twisting before the message finally sinks in in the C-Suite. He may even have to make an example of a runaway company by sending in the tax auditors or the OSHA inspectors or cancelling a big government contract. It won’t matter that, two years later, these highly publicized retaliations are thrown out by a federal judge somewhere. Most companies won’t want to risk such threats to their “brands.” They will find a way to conform to the new norm, somewhat comforted by the fact that their American competitors have been forced to do the same.</p></blockquote>
<p>And here&#8217;s an excerpt from <a href="https://www.washingtonpost.com/news/wonk/wp/2016/12/02/why-trumps-carrier-deal-is-bad-for-america/">Lawrence Summers&#8217; op-ed criticizing the deal</a>:</p>
<blockquote><p>I have always thought of American capitalism as dominantly rule and law based&#8230;. Even though we know of instances of corruption, abuse of power, favoritism and selective enforcement, we take this rules-based system for granted. But looking around the world today or back through American history, this model is hardly a norm. Many market economies operate what might be called ad hoc or deals-based capitalism &#8230;. This is the world of New York City under Tammany Hall, of Suharto’s Indonesia, and of Putin’s Russia.</p>
<p>Reliance on rules and law has enormous advantages. It greatly increases predictability and reduces uncertainty. It reduces expenditures on both guarding property and seeking to appropriate property. It promotes freedom because most of the people most of the time do not take political positions with a view to gaining commercial advantage. The advantages of the rule of law are so great that I would claim that there is no country more than 2/3 as rich as the United States that does not have a strong tradition of the rule of law-based capitalism. And I know of no country where the people are free where the rule of law does not largely govern market interactions.</p>
<p>What about Carrier? The president-elect of the United States decided in a purely ad hoc basis that he wanted Carrier to remain in Indiana. He deployed some combination of carrots and sticks at his disposal to lever Carrier into doing what he wanted. Implicitly or explicitly, there must have been sticks, as press accounts suggest that the tax benefits provided offset only a small part of the savings forgone by staying in Indiana. It is not hard to see from the point of view of United Technologies, the parent of Carrier, that for a company with more than $50 billion in revenue it&#8217;s surely worth $60 million to not be on the wrong side of a possibly vindictive president of the United States.</p>
<p>It seems to me what we have just witnessed is an act of ad hoc deal capitalism and, worse yet, its celebration as a model&#8230;. [O]nly a negligible sliver of the economy is involved, but there is huge symbolic value. A principle is being established: It is good for the president to try to figure out what people want and lean on companies to give it to them. Predictability and procedure are less important than getting the right result at the right time. Like Hong Kong, as mainland China increasingly imposes its will, we may have taken a first step toward a kind of reverse transition from rule of law capitalism to ad hoc deal-based capitalism.</p></blockquote>
<p>This is not quite my field, and you should read the Pearlstein and Summers articles for yourself. But I&#8217;m inclined to favor the Summers view, and to be chilled by the Pearlstein defense of norm-setting by a president&#8217;s &#8220;sending in the tax auditors or the OSHA inspectors or cancelling a big government contract.&#8221;</p>Eugene VolokhSat, 03 Dec 2016 00:47:01 +0000TX9dfKOcjy9gtFsn[Orin Kerr] The government can’t get an email warrant if the account holder consents, court (wrongly) ruleshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/02/the-government-cant-get-an-email-warrant-if-the-account-holder-consents-court-wrongly-rules/<p>Magistrate Judge James Orenstein of Brooklyn is a leader in the <a href="https://www.washingtonpost.com/local/crime/low-level-federal-judges-balking-at-law-enforcement-requests-for-electronic-evidence/2014/04/24/eec81748-c01b-11e3-b195-dd0c1174052c_story.html?utm_term=.ce6f230cb485">Magistrate&#8217;s Revolt</a>, a small group of federal magistrate judges who have often come up with unexpected theories to reject court-order applications in computer search and surveillance cases. I&#8217;ve found several of Orenstein&#8217;s opinions in that vein <a href="http://volokh.com/2010/08/31/fourth-amendment-stunner-judge-rules-that-cell-site-data-protected-by-fourth-amendment-warrant-requirement/">very</a> <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/02/the-weak-main-argument-in-judge-orensteins-apple-opinion/?utm_term=.4972a7925ef5">unpersuasive</a>. Orenstein has handed down another decision earlier in the week that I find equally unpersuasive, and I thought I would explain why.</p>
<p>The decision goes by an amusingly generic name: <a href="http://www.leagle.com/decision/In%20FDCO%2020161129I13/IN%20THE%20MATTER%20OF%20THE%20SEARCH%20OF%20INFORMATION%20ASSOCIATED%20WITH%20[REDACTED%20EMAIL%20ADDRESS]%20THAT%20IS%20STORED%20AT%20PREMISES%20CONTROLLED%20BY%20[REDACTED%20SERVICE%20PROVIDER"><em>In The Matter Of The Search Of Information Associated With [Redacted Email Address] That Is Stored At Premises Controlled By [Redacted Service Provider]</em></a>. In the decision, Orenstein rejects the government&#8217;s application for a search warrant to search a particular email account. Orenstein does not reject the application because it lacks the standard requirements of a search warrant, such as probable cause or particularity. Instead, he rejects the application because the target of the search was cooperating with the government and had consented to the search. In those circumstances, Orenstein rules, he cannot issue the warrant.</p>
<p>Orenstein&#8217;s decision is clearly wrong, I think. I&#8217;ll explain why in two parts that track the reasoning of the opinion.</p>
<p><strong>Part 1: Contents of the Account</strong></p>
<p>In the first part of the opinion, Orenstein argues that &#8220;the warrant procedure is inapposite&#8221; to the extent it seeks to obtain the contents of the target&#8217;s emails. Orenstein starts by noting that 18 U.S.C. 2703(b) offers the government three ways to compel email: with a search warrant, with a subpoena afforded with prior notice and with a 2703(d) order afforded with prior notice. Orenstein then reasons that because the defendant has consented to the search, he must have had notice of it. And because the defendant had notice, he argues, the law bans the government from obtaining the emails with a search warrant and the government must obtain the emails another way without judicial review:</p>
<blockquote><p>Congress has seen fit to provide for resort to the warrant procedure only in those circumstances in which the government seeks to proceed without notice to the subscriber. <em>Compare id. § </em>2703(b)(1)(B),<em> with id. </em>§ 2703(b)(1)(A). I assume that Congress understood what it was doing when it wrote the statute that way, and indeed such a structure makes sense: the distinction promotes judicial economy by imposing the burdens attendant to the warrant procedure (on both the executive and judicial branches) only in those instances in which it is necessary to preserve the secrecy of the government&#8217;s investigation from the service subscriber whose communications the government seeks to access. No such necessity exists here; with the Defendant&#8217;s consent, the government can secure the information it wants in the form it prefers without resort to the warrant process simply by issuing a grand jury or trial subpoena. <em>See id. </em>§ 2703(b)(1)(A).</p></blockquote>
<p>This argument is wrong for three reasons.</p>
<p>First, the provision Orenstein focuses on, 18 U.S.C. 2703(b), is not the standard way for the government to compel email. The provision was declared unconstitutional in <a href="https://scholar.google.com/scholar_case?q=united+states+v.+warshak&amp;hl=en&amp;as_sdt=6,47&amp;case=1170760837547673255&amp;scilh=0"><em>United States v. Warshak</em>, 631 F.3d 266 (6th Cir. 2010)</a>, because it allowed the government to get emails without a warrant. <em>See id.</em> at 288 (&#8220;The government may not compel a commercial ISP to turn over the contents of a subscriber&#8217;s emails without first obtaining a warrant based on probable cause. … [T]o the extent that the SCA purports to permit the government to obtain such emails warrantlessly [as it does under 2703(b)], the SCA is unconstitutional.&#8221;). All of the major Internet providers follow <em>Warshak</em>, and they won&#8217;t turn over the contents of accounts with less process than a search warrant (as Orenstein appears to recognize in footnote 2). Given that the provision was declared unconstitutional, and providers don&#8217;t follow it, it is difficult to use it as the standard for how to obtain email.</p>
<p>Second, even if you put Fourth Amendment concerns aside, the government still couldn&#8217;t legally compel a provider to disclose the entire contents of an account under 2703(b). The reason is that Section 2703 requires a warrant for some kinds of email under 2703(a) and then permits the government to get other kinds of email with less than a warrant under 2703(b). Even if a provider is willing to ignore <em>Warshak</em>, obtaining the entire contents of an account would very likely still require a warrant under 2703(a).</p>
<p>Third, nothing in 2703(b) suggests that the government can&#8217;t use a search warrant when a suspect has received notice. The three options in 2703(b) are just that: options. The government can use a search warrant &#8220;without required notice,&#8221; or it can use less process than a warrant &#8220;with prior notice.&#8221; Congress did that to allow a suspect to challenge warrantless access to his email under Section 2704. The usual rule is that the recipient of a subpoena has a pre-execution right to challenge it while the target of a warrant doesn&#8217;t. The structure of 2703(b) enforces that usual rule by giving customers the notice needed to make the pre-execution challenge where such a challenge can be brought. And Congress allowed for the option of a search warrant because the consistent theme of the statute is that the government can always opt for more process than less. This is necessary to enable &#8220;one- stop hopping&#8221; with a single application, rather than multiple applications for different kinds of information sought under the statute.</p>
<p>Judge Orenstein reads that language instead as mandating a particular path &#8212; warrant or no warrant &#8212; depending on whether the suspect is on notice of the search. But I don&#8217;t understand why he reads the statute that way. Orenstein suggests a necessity rationale by which magistrate judges are only to be bothered with warrant applications if it is necessary to preserve secrecy. But nothing in the text says that, and it make no sense because Congress also allowed delayed notice without a warrant under 18 U.S.C. 2705. Further, Rule 41 is pretty clear about a magistrate judge&#8217;s obligation to issue a search warrant. Rule 41(d)(1) states that when an application is received, a magistrate judge &#8220;must issue the warrant&#8221; if probable cause is established. It&#8217;s not an option. The rule says &#8220;must.&#8221;</p>
<p><strong>Part 2: Non-Content Records of the Account</strong></p>
<p>In part two of the opinion, Orenstein denies the application for a warrant to the extent it seeks non-content records about the account. Orenstein recognizes that the statute permits the government to obtain the records with a warrant. According to Orenstein, however, there is no case or controversy allowing him to issue the warrant because the government can get the information without a warrant.</p>
<p>The argument seems to break down into five steps. First, because the account owner consented to the search, a provider has a legal obligation to hand over the non-content records pursuant to that consent. Second, because the provider has to hand over the account records, an order to hand over the account records doesn&#8217;t make the provider do anything it doesn&#8217;t have to do already. Third, if the order doesn&#8217;t impose new obligations, then it has no practical effect. Fourth, if the order has no practical effect, it is not redressing any harm. And fifth, if it is not redressing harm, then there is no Article III standing allowing the judge to issue the warrant.</p>
<p>Here&#8217;s the key passage, with a paragraph break added:</p>
<blockquote><p>The problem is not that issuing a warrant contravenes the statute; the problem is that doing so will do nothing to alter the legal rights and obligations of any person or entity. Because the government has secured the Defendant&#8217;s consent, it already has the right to access the Defendant&#8217;s account records — and the Provider has a corresponding legal obligation to disclose them. <em>Id</em>. § 2703(c)(1)(C). &#8220;&#8216;Federal courts are without power to decide questions that cannot affect the rights of litigants before them.'&#8221; <em>DeFunis v. Odegaard</em>, 416 U.S. 312, 316 (1974) (quoting <em>North Carolina v. Rice</em>, 404 U.S. 244, 246 (1971)); <em>Pitkin Supermarket, Inc. v. United States</em>, 2016 WL 6879254, at *4 (E.D.N.Y. Nov. 21, 2016) (quoting same); see also <em>Utjan v. Defs. of Wildlife</em>, 504 U.S. 555, 561 (1992) (holding that retiressability is an element of the &#8220;irreducible constitutional minimum of standing&#8221;).</p>
<p>Accordingly, deciding whether the government has established probable cause to believe that the Defendant&#8217;s email account records will constitute evidence, fruits and instrumentalities of the Subject Offenses will not affect the government&#8217;s right to compel the Provider to disclose those records. As a result, notwithstanding the SCA&#8217;s applicability to a broad set of circumstances including those of this case, this court lacks the constitutional authority to determine the question of probable cause presented by the government&#8217;s application.</p></blockquote>
<p>I don&#8217;t think this reasoning works. It is true that 18 U.S.C. 2703(c)(1)(C) requires a provider to disclose non-content records when the government has the consent of a subscriber to the disclosure of the records. This provision is almost never used, but it&#8217;s an option in the statute. But I don&#8217;t see how that matters here. First, it&#8217;s not clear from the opinion that the account holder has consented to the disclosure of his records. The application only states that the account holder consented to government access to &#8220;the entire contents&#8221; of his account. It speaks of contents, not non-content records. And second, even if the account holder implicitly consented to the disclosure of the non-content records, it&#8217;s not clear why the government can&#8217;t use the different option of a search warrant. The statute explicitly permits the government to get non-content records in a range of ways, a search warrant among them under 2703(c)(1)(A). There is no rule that a court order can&#8217;t issue if the other options are available.</p>
<p>Orenstein reasons that he can&#8217;t issue a warrant to order a result that is supposed to happen anyway. According to Orenstein, there is no standing to issue an order if it doesn&#8217;t change the government&#8217;s legal rights. But I don&#8217;t think this argument works for at least two reasons. First of all, a warrant is an ex parte court order rather than a resolution of a dispute. Warrant proceedings haven&#8217;t traditionally fit the model of adversarial litigation, <em>see Morrison v. Olson</em>, 487 U.S. 654, 681 n.20 (1988). Given that, I don&#8217;t think concepts like &#8220;standing&#8221; have a place in that context. When a court issues a warrant, or schedules a trial date, or grants permission to file an oversized brief, we don&#8217;t ordinarily say that the court&#8217;s power to issue the order is subject to the limits of adversarial litigation such as standing. Instead, such orders are generally considered part of the judiciary&#8217;s inherent authority.</p>
<p>Second, even if a judge&#8217;s ability to issue an ex parte order is subject to Article III standing limits, I don&#8217;t think it makes sense to say that there is no standing just because the party seeking the order has a legal right to the information anyway. The party is seeking the order; it doesn&#8217;t have the order. It is seeking the information; it doesn&#8217;t have the information. Even assuming that the provider is supposed to give the government the information under the statute, it hasn&#8217;t actually done that. If there was consent, the provider hasn&#8217;t been told about it. Plus, having a warrant would give the government different powers to obtain the records and impose a different obligation on the provider to follow the specific terms of the warrant. The warrant would specify precisely how and when the warrant is to be executed &#8212; pretty different from the general obligation to follow the statute that doesn&#8217;t have an obvious enforcement mechanism.</p>Orin KerrFri, 02 Dec 2016 17:18:24 +0000MqMJ6ZPcczHqFV7l[Eugene Volokh] Prof. Michael McConnell on Brexit and British constitutional lawhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/02/michael-mcconnell-on-brexit-and-british-constitutional-law/<p><a href="http://www.hoover.org/research/question-prerogative">Stanford law professor Michael McConnell has post at the Hoover Institution site</a> that I very much liked, and that he kindly agreed to let me post in its entirety.</p>
<blockquote><p>Next week the Supreme Court of the United Kingdom will hear arguments in the most important constitutional case in modern European history. At issue is whether Prime Minister Theresa May has authority to exercise Britain’s right to exit the European Union (EU) without a vote of Parliament. The case is styled <i>Secretary of State v. Miller</i>.</p>
<p>On June 23, the British people voted narrowly but decisively to leave the European Union, a hugely controversial result opposed by most of the leadership of both political parties, the mainstream press, and younger Britons. On November 3, the British High Court of Justice somewhat unexpectedly held that the Crown &#8212; meaning the Prime Minister &#8212; lacks authority to effectuate the results of the referendum without parliamentary approval. The government has appealed that decision, both sides have filed briefs, and the case will be argued for four days, beginning on December 5.</p>
<p><i>Miller</i> has thrown the Brexit process into confusion. No one knows what will happen if the decision is affirmed by the Supreme Court. Majorities of members of Parliament of both major parties opposed leaving the EU, and still do. To be sure, many MPs believe they have a moral obligation to carry out the expressed will of the people, and thus will vote for Brexit despite their own strong misgivings. But members of Parliament are, in constitutional principle, expected to use their own best judgment as to the good of the nation, rather than simply to vote as their constituents wish. No one knows how a final vote would shake out. To make matters more complicated, the House of Lords &#8212; always a wild card &#8212; could delay or even derail the process even if the Commons votes for Brexit.</p>
<p>The British Supreme Court’s decision thus has enormous practical importance. It is therefore surprising that the legal logic of the case has received so little attention. It may seem presumptuous for an American constitutional scholar to wade into the arcane waters of British constitutionalism, but the <i>Miller</i> opinion rests on fundamental and long-standing legal principles, susceptible to analysis and understanding even by an outsider. I believe the High Court’s decision rests on a mistake. I do not know enough about the jurisprudence of the British Supreme Court, which was formed only in 2009 and has never faced a case of this nature before, to predict whether that court will affirm or reverse. But I do think there are strong grounds for reversal.</p>
<p>The decision hinged on the nature of the royal prerogative. A prerogative is a power vested in the chief executive by virtue of his or her office, not requiring legislative authorization and not subject to legislative override or interference. Familiar examples from the United States Constitution are the presidential powers of veto and pardon. The prerogative powers of the British monarch were once extensive, but over the centuries Parliament has wrested many once-prerogative powers away from the Crown and made them subject to laws passed by the legislative branch. Nonetheless, some important prerogative powers remain. <i>Miller</i> is, in my view, the most important case about prerogative in the history of British constitutional law since the early seventeenth century.</p>
<p>In theory, prerogative powers are vested in the Crown, meaning Queen Elizabeth II. Indeed, the <i>Miller</i> opinion reads as if the question presented were whether the Queen herself has power to act. But under modern constitutional principles, the monarch acts through her ministers, who represent the majority in Parliament. In reality, prerogatives are vested in the Prime Minister, Theresa May.</p>
<p>Under Article 50 of the Treaty on European Union, member states like Britain have the right “to withdraw from the Union in accordance with [their] own constitutional requirements.” The question before the High Court was whether, under the unwritten British constitution, the power to exercise Britain’s Article 50 exit right is vested in the Crown (meaning the Prime Minister), or in Parliament as a whole, which would require a vote of that body. The Brexit referendum vote does not provide authority for the Prime Minister to act. As the Court held, the referendum was advisory only.</p>
<p>Two uncontested principles of British constitutional law frame the legal analysis. First, as stated in <i>Miller</i>, “the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers.” Control over diplomacy is an ancient and undiminished prerogative. Giving notice under Article 50 falls squarely within the scope of this foreign affairs prerogative.</p>
<p>The second uncontested principle is the rub: “the Crown cannot change domestic law by any exercise of its prerogative powers.” This principle, too, has venerable roots. Early modern kings &#8212; notably Henry VIII and James I &#8212; asserted the power to make law by executive decrees (called “proclamations” or “orders in council”), but James was slapped down by the great Chief Justice Edward Coke in 1610, in <i>The Case of Proclamations</i>. In that decision, Coke held that “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm.”</p>
<p>In tandem, these principles mean that the Crown can make or unmake treaties without Parliamentary participation, but that any implementation requiring passage of laws or appropriation of money is dependent on Parliament. When Britain joined the EU, the Crown approved the treaty, but Parliament passed the European Communities Act (ECA), which adopted European laws and regulations into British domestic law.</p>
<p>The <i>Miller</i> Court reasoned that Brexit would change domestic law because European laws and regulations would cease to apply when the United Kingdom was no longer part of the Union. With due trepidation as an outsider to British constitutional law, this strikes me as logically incorrect.</p>
<p>What happens if the Crown gives notice under Article 50, and Britain ceases to be a member of the European Union? This depends on an interpretation of the ECA. The key language comes from section 2(1) of the Act: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.”</p>
<p>One possible reading (the more plausible, in my view) is that the rights, obligations, etc. arising “under” the Treaties are applicable in Britain only insofar as Britain is subject to the Treaties. If that is correct, there is no need for the Crown to go to Parliament in order to effectuate Brexit. The ECA already anticipates Brexit, and in the event of withdrawal from the Treaty, European law ceases to apply &#8212; not because the Crown has changed the law, but because the provisions of the law are triggered by membership in the EU.</p>
<p>A second possible reading is that the ECA has brought European law into force in Britain, and that it will require an Act of Parliament to repeal it. But this does not mean the Crown lacks power to give notice under Article 50. It merely means that the unmaking of the Treaty will not have full effect without passage of legislation. This is no different from any case in which a treaty calls for a change in law or the expenditure of money. Most treaties are not “self-executing,” but require implementing legislation. Merely because implementing legislation is needed does not mean the Crown cannot enter a treaty.</p>
<p>Moreover, the ECA expressly empowers “Her Majesty” to issue Orders in Council “for the purpose of dealing with matters arising out of or related to any such obligations or rights” under the Treaty. The exercise of exit rights under Article 50 would appear to fall within the rubric of “matters arising out of . . . obligations or rights” under the Treaty. If so, the Prime Minister can give notice under Article 50 as an exercise of delegated authority, without relying on royal prerogative.</p>
<p>The <i>Miller</i> opinion also stressed that British citizens enjoy rights of free movement throughout the European Community, and that these rights cannot be abrogated by an exercise of royal prerogative. But these rights of movement, however important, are not held by virtue of British domestic law. The Crown is not barred from exercising prerogative powers by the possibility that foreign governments may respond in ways that affect the rights of British citizens. By analogy, British citizens might lose the right to travel or do business in Spain if Britain declared war on that country &#8212; but no one denies that the Crown had the traditional prerogative power to declare war.</p>
<p>In short, the Crown has the prerogative to unmake treaties, including the Treaty of European Union, without consulting Parliament. This certainly will “affect” legal rights both within Britain and on the continent, but as a formal matter, it neither makes nor unmakes domestic law. Perhaps the Supreme Court will so hold. If not, we can look forward to an unprecedented season of turmoil.</p></blockquote>Eugene VolokhFri, 02 Dec 2016 13:24:00 +0000CyIpfKC070B0lXNo[Eugene Volokh] We Americans expect results, and quick!http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/we-americans-expect-results-and-quick/<p>Just filed a week ago (Nov. 22): <a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/12/FranklinvTrump.pdf"><i>Franklin v. Trump</i></a>, where President-elect Donald Trump is sued partly because he &#8220;promised to Repeal Obama care&#8221; and &#8220;also promised to deport the illegal aliens&#8221; but &#8220;has not yet repealed Obama care nor deported illegals.&#8221;</p>
<p>Of more personal concern to me, Trump is also faulted for &#8220;fail[ing] to mention the fact that his wife is a born Communist from Russia and not entitled to live in the White House&#8221; (&#8220;a form of espionage/treason&#8221;). Hey, when my wife is elected president, I should be totally entitled to live in the White House, even if I was born in what was then essentially the Russian Empire. (I&#8217;m from Kiev, now in the Ukraine, but if Slovenia is Russia, then surely Kiev is.) I&#8217;m not a born Communist, Mr. Franklin &#8212; really I&#8217;m not!</p>
<p>The remedies sought by Mr. Franklin: execution (by hanging) of President Donald Trump for treason, plus two trillion dollars.</p>Eugene VolokhThu, 01 Dec 2016 21:30:39 +0000kUmUogCm9WxHZioY[David Post] 4th Circuit strikes down North Carolina residency/movement restrictions on sex offendershttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/4th-circuit-strikes-down-north-carolina-residencymovement-restrictions-on-sex-offenders/<p>In an important decision, the U.S. Court of Appeals for the 4th Circuit on Wednesday struck down [<em>Doe v. Cooper</em> &#8212; <a href="http://www.ca4.uscourts.gov/Opinions/Published/166026.P.pdf" target="_blank">opinion posted here</a>] as unconstitutional under the First Amendment yet another &#8220;unconstitutional monstrosity&#8221; perpetrated by the North Carolina legislature in its unceasing efforts to make life as miserable as humanly possible for previously convicted (but now ostensibly &#8220;free&#8221;) sex offenders, and to deprive them of any hope of re-integrating into the communities in which they live.</p>
<p>[Alert Conspiracy readers will recall that the Supreme Court has agreed to review a decision by the North Carolina Supreme Court that rejected a First Amendment challenge to a different section of the N.C. sex offender regulatory scheme &#8212; one that imposes criminal penalties on sex offenders who &#8220;access &#8230; commercial social networking websites&#8221; for any reason. Eugene and I have blogged extensively about this case: See <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/10/first-amendment-woes-in-north-carolina/" target="_blank">here</a>, <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/16/on-ample-alternative-channels-of-communication-the-first-amendment-and-social-networking" target="_blank">here</a>, <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/25/law-forbids-you-from-using-facebook-but-hey-you-can-use-the-paula-deen-network-instead" target="_blank">here</a>, and <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/28/supreme-court-agrees-to-consider-n-c-ban-on-sex-offenders-access-to-most-prominent-social-networks" target="_blank">here</a>].</p>
<p>In this case, the statute in question made it a Class H felony (punishable by &#8220;a presumptive term of imprisonment of 20 months) for sex offenders to “knowingly be” at any of the following locations:</p>
<blockquote><p>(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.<br />
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) . . . that are located in malls, shopping centers, or other property open to the general public. [Or]<br />
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs. NCGS 14-208.18(a).</p></blockquote>
<p>The court held, first, that the provisions of subsection (3) are unconstitutionally vague; &#8220;neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized by subsection (a)(3).&#8221;</p>
<blockquote><p>Two principal problems are evident in subsection (a)(3) which compel the conclusion it is unconstitutionally vague. In particular, a reasonable person, whether a restricted sex offender or a law enforcement officer, cannot reasonably determine (1) whether a program for minors is “regularly scheduled” or (2) what places qualify as those “where minors gather.” &#8230;</p>
<p>The term “regular” means happening at fixed intervals. Even if a restricted sex offender or law enforcement officer knew precisely how often and where the “scheduled programs” took place, the statute provides no principled standard at all for determining whether such programs are “regularly scheduled.” Notably, subsection (a)(3) provides no examples to guide restricted sex offenders or law enforcement as to how frequently the programs would need to occur in order to be “regularly scheduled.” &#8230;</p>
<p>Subsection (a)(3)’s “where minors gather” language is also without defining standards. For example, subsection (a)(3) does not explain how many minors must gather at the place. Subsection (a)(3) also does not explain whether a place where mixed groups of minors and adults gather, such as a community college that has some high school students or a church with a congregation of adults and minors, would be considered a restricted zone under subsection (a)(3).</p></blockquote>
<p>Additionally, the court found that subsection (a)(2) could not withstand &#8220;intermediate scrutiny&#8221; under the First Amendment:</p>
<blockquote><p>To pass intermediate scrutiny, a statute must materially advance[] an important or substantial [government] interest by redressing past harms or preventing future ones. In addition, it must have the right “fit.” That is, it cannot burden substantially more speech than is necessary to further the government’s legitimate interests.</p></blockquote>
<p>The burden of establishing the required fit is placed &#8220;squarely upon the government,&#8221; and North Carolina failed to meet it &#8212; by a goodly distance, failing to present <em>any evidence whatsoever </em>that the statute advanced the state&#8217;s interest in protecting minors in any way. At trial, the district court &#8220;put the State on notice that its limited evidence was inadequate to meet its burden of proof, but the State &#8220;explicitly declined to introduce any additional evidence.&#8221;</p>
<blockquote><p>[The State&#8217;s] decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. &#8230; The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with an appeal to &#8220;logic and common sense.” But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof.</p>
<p>[T]he State cannot rest its case on the conclusory assertion that minors would be “more exposed to harm without [this] prohibition than with it.” Without empirical data or other similar credible evidence, it is not possible to tell whether subsection (a)(2) &#8212; and specifically its application to offenders with only adult victims &#8212; responds at all to the State’s legitimate interest in protecting minors from sexual assault.&#8221;</p></blockquote>
<p>That might seem an unspectacular point; if the State offers no evidence at all that the statutory prohibition does anything to ameliorate the evils at which it is aimed, it cannot possibly satisfy the State&#8217;s burden of demonstrating that the statute &#8220;materially advances&#8221; the State&#8217;s interest. It is noteworthy, however, because so many other courts have meekly accepted the &#8220;conclusory assertion,&#8221; based on &#8220;common sense,&#8221; that the statute does more good than harm, and does not burden more speech than necessary to accomplish that good. [In the other North Carolina case referred to above, for example, the state presented no evidence that the ban on accessing social networking sites was, in fact, effective in any way at protecting minors &#8212; but the North Carolina Supreme Court upheld it anyway].</p>
<p>So kudos to Judges Motz, Traxler and Agee. This is just what the federal courts are supposed to do when constitutional rights are at stake: hold the government&#8217;s feet to the fire, and demand that they demonstrate that have a damned good reason for doing what they&#8217;re doing.</p>David PostThu, 01 Dec 2016 18:12:52 +0000KpP51uqsdYy3aYF6[Eugene Volokh] Getting sex by saying ‘If you don’t have sex with me I will find someone who will’ = rape or sexual assault?http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/getting-sex-by-saying-if-you-dont-have-sex-with-me-i-will-find-someone-who-will-rape-or-sexual-assault/<p>From <a href="http://www2.clarku.edu/offices/dos/survivorguide/definition.htm">the Clark University Dean of Students office</a>:</p>
<blockquote><p>A Definition of Rape, Sexual Assault and Related Terms</p>
<p>Rape / Sexual Assault</p>
<p>Although the legal definition of rape varies from state to state, rape is generally defined as forced or nonconsensual sexual contact.</p>
<p>Rape and/or sexual assault is forced, manipulated, or coerced sexual contact by a stranger, friend or acquaintance&#8230;. A person is forced into sexual contact through verbal coercion, threats, physical restraint, and/or physical violence. Consent is not given&#8230;.</p>
<p>Coercion</p>
<p>Coercion is the use of emotional manipulation to persuade someone to something they may not want to do – like being sexual or performing certain sexual acts. Examples of some coercive statements include: “If you love me you would have sex with me .”, “If you don&#8217;t have sex with me I will find someone who will.”, and “I&#8217;m not sure I can be with someone who doesn&#8217;t want to have sex with me.” Coercive statements are often part of many campus acquaintance rapes. Being coerced into having sex or performing sexual acts is not consenting to having sex and is considered rape/sexual assault.</p>
<p>Consent</p>
<p>Consent is clear permission between intimate partners that what they are doing is okay and safe. To consent to something &#8212; like being sexual &#8212; means you confidently agree to do it based on your own free will without any influence or pressure.</p></blockquote>
<p>So saying &#8220;If you don&#8217;t have sex with me I will find someone who will&#8221; is &#8220;coercion,&#8221; and thus means that any resulting sex is not consensual. This means that getting sex that way is &#8220;rape and/or sexual assault&#8221; (because it&#8217;s &#8220;coerced sexual contact&#8221;), and in particular may well be &#8220;acquaintance rape.&#8221;</p>
<p>Words fail me &#8212; though they apparently failed the Clark University Dean of Students office as well.</p>
<p>Thanks to <a href="http://www.advicegoddess.com/archives/2016/11/30/at_clark_univer.html">Amy Alkon (Advice Goddess Blog)</a> for the pointer.</p>Eugene VolokhThu, 01 Dec 2016 17:00:22 +0000KteEtRrM4HWd3vBq[Orin Kerr] A reply to Professor Lessig on the electoral collegehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/a-reply-to-professor-lessig-on-the-electoral-college/<p>A <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/25/the-electoral-college-shouldnt-choose-clinton-a-response-to-lessig/?utm_term=.627e2e772ac2">few days ago</a>, I critiqued <a href="https://www.washingtonpost.com/opinions/the-constitution-lets-the-electoral-college-choose-the-winner-they-should-choose-clinton/2016/11/24/0f431828-b0f7-11e6-8616-52b15787add0_story.html?tid=a_inl&amp;utm_term=.c2c814b76898">an argument by Professor Lawrence Lessig</a> that electors should name Hillary Clinton president of the United States because she won the popular vote. Professor Lessig <a href="https://medium.com/@lessig/a-response-to-professor-kerr-657e3d9147d2#.npogfb5q8">has graciously responded to my post</a>, and I thought I would flag his response and offer a reply.</p>
<p>As <a href="https://medium.com/@lessig/a-response-to-professor-kerr-657e3d9147d2#.npogfb5q8">Lessig&#8217;s response</a> clarifies, his proposal is that electors should exercise their best judgment about who should be president in light of our commitment to weighing the votes of citizens equally:</p>
<blockquote><p>My argument is that an elector should recognize just how fundamental the popular vote is to our understanding of the modern presidency. And more precisely, how important it now is within our constitutional tradition that we weigh the votes of citizens equally. That recognition should in turn lead an elector to avoid casting her vote in away that defeats a popular election.</p></blockquote>
<p>In Lessig&#8217;s view, electors should approach the job of ascertaining the best pick for the presidency with a theory of democracy, that of equal vote weight, in mind. That should lead them to favor whoever won the most votes who was also a reasonable choice.</p>
<p>In response to my concern that Lessig&#8217;s proposal would unfairly change the rules after the vote took place, Lessig writes:</p>
<blockquote><p>All this, Orin insists, however, should be “announced beforehand so the candidates can try to win under the understood rules.” Of course that’s right. But Orin agreed the electors exercise judgment. And the principle of one person, one vote was not announced in an op-ed last week. I believe we should apply the rules that should have been clear on January 1, 2016. Those rules include the idea that my vote should not count different merely because of where I live.</p></blockquote>
<p>I really appreciate Lessig&#8217;s clarification. Here are two thoughts in response.</p>
<p>First, I continue to think there&#8217;s a considerable clash between the originalist idea of electors exercising their independent judgment and the modern idea of electors following the nationwide majority vote. Lessig attempts to reconcile them by describing the originalist standard as a view that electors should follow &#8220;reasons and inducements which were proper,&#8221; quoting <a href="http://avalon.law.yale.edu/18th_century/fed68.asp">Federalist 68</a>. The importance of a nationwide majority vote is so clear, Lessig suggests, that it is &#8220;proper&#8221; for electors to be &#8220;induced&#8221; by that &#8220;reason.&#8221;</p>
<p>But I think Federalist 68 articulates a different idea. The power to pick the president is not to be given to the people, it says, but rather &#8220;to men chosen by the people for the special purpose&#8221; of electing the president. These electors should be wise and judicious men capable of deliberating over the best choice and exercising the careful judgment needed to pick the best president based on all the relevant information. They should be, the essay explains,</p>
<blockquote><p>men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.</p></blockquote>
<p>This sounds really different from just following national vote totals. If electors are just following the national vote totals, then they have no &#8220;complicated investigation&#8221; to conduct nor any need to &#8220;analyze the qualities&#8221; of nominees &#8220;under circumstances favorable to deliberation.&#8221; They just have to wait for the national vote count and then pick the candidate with the highest number. That requires no judgment. It wouldn&#8217;t even matter who the electors are; you could replace the lot of them with a calculator. Given that, there does seem to be a significant clash between the originalist idea of electors exercising independent judgment and the newer idea of electors deferring to national vote counts.</p>
<p>I think there is a broader difficulty with Lessig&#8217;s argument. At its core, Lessig&#8217;s view is that there is a &#8220;constitutional tradition that we weigh the votes of citizens equally&#8221; that should govern election results. Just as a descriptive matter, though, that factual claim strikes me as too broad. A line of important Supreme Court cases applies the principle of &#8220;one person, one vote&#8221; in some contexts. That&#8217;s a big deal. At the same time, our constitutional tradition recognizes, and in some contexts directly embraces, the unequal weighing of votes. For better or worse, our constitutional tradition reflects a mix of equality and inequality.</p>
<p>Consider the constitutional text about the electoral college. Article II, Section 1 states that &#8220;[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.&#8221; That&#8217;s strikingly unequal. Small states get more electoral college power per voter than do large states.</p>
<p>If we&#8217;re identifying our constitutional tradition, then I think we need to be more specific. The question is not just whether there is a tradition of equal weighing of votes in some areas, but whether that tradition has been understood to govern the specific question of how electors vote for president.</p>
<p>It seems to me that the answer to that question is clearly &#8220;no.&#8221; For better or worse, our understood tradition is the weird winner-take-all, state-by-state system in which the popular vote just doesn&#8217;t matter. That&#8217;s what the campaigns assume the rules will be. That&#8217;s what the media assumes the rules will be. And that&#8217;s what voters assume the rules will be, too.</p>
<p>Think of what you saw when you turned on the TV on the night of Nov. 8. The talking heads presented the election as a race to 270 electoral college votes based on the winner-take-all state votes, not the nationwide popular vote. The networks called states for Donald Trump or Clinton accordingly. After Trump reached 270 votes based on those assumptions, the networks called the election for Trump. Clinton conceded defeat.</p>
<p>Imagine you had turned on the TV that night and the networks announced that they couldn&#8217;t call any states because they didn&#8217;t know yet who won the nationwide popular vote. You would think it a bizarre error, or maybe some kind of joke. It would conflict with settled understandings of how presidential elections work.</p>
<p>Lessig argues that it should have been clear, before the election, that our constitutional tradition rejects that understanding. But the word &#8220;should&#8221; is doing a lot of work here. It&#8217;s a normative argument for change. It urges us to rethink the electoral college and replace our existing tradition of inequality with a new tradition of equality. I&#8217;m certainly open to that going forward. But it&#8217;s a call for a big shift in how we think about presidential elections, not just a recognition of a consensus view held before Nov. 8.</p>
<p>That&#8217;s my sense, at least. Thanks again to Professor Lessig for the excellent exchange.</p>Orin KerrThu, 01 Dec 2016 16:30:47 +00006MBGJTaM1s5eD5PE[David Bernstein] The dangers of living in a political-ideological bubble, Clinton campaign editionhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/the-dangers-of-living-in-a-political-ideological-bubble-clinton-campaign-edition/<div id="attachment_43958" style="width: 970px" class="wp-caption aligncenter"><img class="size-full wp-image-43958" src="http://www.washingtonpost.com/rf/image_960w/2010-2019/WashingtonPost/2016/11/30/Editorial-Opinion/Images/Hillary_Clinton-12578.jpg" alt="" width="960" /><p class="wp-caption-text">Hillary Clinton addresses the Children&#8217;s Defense Fund&#8217;s Beat the Odds celebration at the Newseum in Washington on Nov. 16. (Cliff Owen/Associated Press)</p></div>
<p>Among the many postmortems on the Clinton campaign, many have noted that Hillary Clinton substantially underperformed expectations among independent and Republican suburban women. Why did the campaign expect to do better? Partly because of Donald Trump&#8217;s, shall we say, checkered past with regard to women, but also because the campaign believed that women would be mobilized by the prospect of the first female president &#8212; remember, for example, how the campaign victory party was going to feature confetti shaped like glass shards (to symbolize the &#8220;broken&#8221; glass ceiling)?</p>
<p>I know quite a few people (men and women) who were, in fact, excited by the prospect that Clinton would become the first female president. Every single one of them, however, was a dedicated Democrat who would have voted for Clinton regardless. I didn&#8217;t come across a single independent or Republican friend, in &#8220;real life&#8221; or in social media, who found the breaking-the-glass-ceiling meme the least bit compelling. Indeed, some found it off-putting that the Clinton campaign seemed to want them to vote for her in part <em>because</em> she was a woman.</p>
<p>By contrast, almost everyone I knew, even die-hard conservatives, were at least a bit excited in 2008 that Barack Obama had the opportunity to become the first African American president. Indeed, for many who opposed him, it was something of a consolation; their preferred candidate lost, but they were proud and happy that the American public was willing to elect a black president.</p>
<p>Why didn&#8217;t members of the Clinton campaign pick up on the fact that there were few votes to be gained from the first-female-president theme? I suspect it&#8217;s because they and just about everyone they socialized with were, like my liberal Democratic friends, excited by this. Living in the liberal bubbles of elite New York and Washington, they significantly overestimated how much this excitement was shared by the public at large.</p>David BernsteinThu, 01 Dec 2016 16:18:27 +0000tlWxLGCgAuIcUAJo[Ilya Somin] Federalism and the Roberts Courthttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/federalism-and-the-roberts-court/<p>My recent article on the Roberts Court&#8217;s record on federalism issues is <a href="https://ssrn.com/abstract=2876696">now available on the SSRN website</a>. It challenges conventional wisdom on a number of points. Here is the abstract:</p>
<blockquote><p>The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones. The extent of these gains is greater than many observers recognize. Much of this progress fits the conventional model of federalism as a left-right ideological issue on the Court, dividing liberal Democrats from conservative Republicans. But some noteworthy developments depart from this framework, and suggest a greater degree of openness to federalism among the liberal justices, and perhaps others on the left.</p></blockquote>
<p>The article evaluates the extent of the Roberts Court&#8217;s efforts to enforce federalism. It does not attempt to judge whether the Court got these issues right or wrong. But whether you agree with these decisions or not, they have had an important effect on constitutional federalism, and may well influence future developments after the new president appoints a replacement for Justice Antonin Scalia, who passed away earlier this year.</p>Ilya SominThu, 01 Dec 2016 15:50:34 +0000RVNf9PW23pZvArNL[Eugene Volokh] Leonard Cohen’s work did sometimes focus on sex, but this is ridiculoushttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/leonard-cohens-work-did-sometimes-focus-on-sex-but-this-is-ridiculous/<div id="attachment_43925" style="width: 1211px" class="wp-caption aligncenter"><img class="wp-image-43925 size-full" src="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/12/LeonardCohenRollingStone.jpg" alt="leonardcohenrollingstone" width="1201" height="673" /><p class="wp-caption-text">(Screenshot)</p></div>Eugene VolokhThu, 01 Dec 2016 14:28:25 +0000BgEfNs8UgfH84Szd[Will Baude] Who will prevail in the sexual-orientation discrimination and parking stop cases?http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/who-will-prevail-in-the-sexual-orientation-discrimination-and-parking-stop-cases/<p>I spent yesterday morning attending the en banc oral arguments at the U.S. Court of Appeals for the 7th Circuit, which are always a treat. You can already listen to them online (<a href="http://media.ca7.uscourts.gov/sound/external/nr.15-1720.15-1720_11_30_2016.mp3">here</a> and <a href="http://media.ca7.uscourts.gov/sound/external/nr.15-1366.15-1366_11_30_2016.mp3">here</a>) because the 7th Circuit is very good about these things. In any event, a few thoughts:</p>
<p><em>Hively</em> &#8212; the Title VII/sexual orientation case (<a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/does-federal-law-already-ban-discrimination-on-the-basis-of-sexual-orientation/?utm_term=.87dfc7d6fc7a">previewed here</a>): The courtroom was packed for this argument (and I was shunted to an overflow room), but there were very few surprises. Both parties made more or less the arguments you would expect them to make, although the defendant&#8217;s lawyer made them without much enthusiasm, and while stressing that, in fact, the defendant is opposed to discrimination on the basis of sexual orientation despite its position on federal law.</p>
<p>Interesting moments included:</p>
<blockquote>
<ul>
<li>Judge Easterbrook&#8217;s aggressive questioning of the defendant&#8217;s lawyer on the basis of <em>Loving v. Virginia</em>.</li>
<li>Judge Posner asking &#8220;Why do you think there are lesbians?&#8221; followed by a bad joke by Judge Bauer followed by Judge Posner&#8217;s suggestion that lesbians in fact have a different &#8220;sex&#8221; from heterosexual women(!).</li>
<li>Judge Posner&#8217;s complaint about Justice Scalia&#8217;s hypocrisy in joining the flag-burning opinion in <em>Texas v. Johnson</em>, which (Posner thought) obviously could not be justified on originalist grounds. (Posner has apparently not encountered co-blogger Eugene&#8217;s <a href="http://www2.law.ucla.edu/volokh/symbolic.pdf">excellent article on the history of symbolic speech and burning effigies</a>.)</li>
</ul>
</blockquote>
<p>But really, the only interesting questions left at the end were 1) on which theory exactly Ms. Hively would prevail, and 2) whether the decision would be unanimous.</p>
<p><em>Johnson</em> &#8212; the &#8220;parking while black&#8221; case (<a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/ordinary-investigative-stop-or-extraordinary-and-unlawful-police-tactics/?utm_term=.eb6487a4d79d">previewed here</a>): Although the courtroom half-cleared out after this first argument, I think this one turned out to be the interesting one. I was pleased to see that some common ground (correctly, I think) was established pretty early on &#8212; on the one hand, there seemed to be general agreement that this was a seizure under the Fourth Amendment, and so required justification; on the other hand, there seemed to be general agreement that given sufficient evidence of a parking violation, police officers can write a ticket and make a seizure while doing so.</p>
<p>That left one major question, though along the way we got entertaining digressions on snow control in Midwestern cities; the ability of hardy Midwesterners to endure cold temperatures; the time it takes to get a latte at Starbucks (30 minutes, apparently, near the courthouse); and the best time of night to go liquor-shopping.</p>
<p>The major substantive question was: Was there sufficient evidence to support the stop? This turns out partly to come down to a dispute about Wisconsin law &#8212; does the privilege of <a href="https://docs.legis.wisconsin.gov/statutes/statutes/346/VIII/53">&#8220;receiving or discharging passengers&#8221;</a> mean that as soon as the passenger gets out of the car, you have to keep moving and park or circle around the block? Or does it mean you can sit there for a few minutes while the passenger runs a short errand? I confess I wondered whether nine 7th Circuit judges had really gathered in the en banc courtroom to resolve this question of Wisconsin traffic law &#8212; interesting though it is &#8212; but it does seem to me that the case may be impossible to resolve without it.</p>
<p>And this question is partly a substantive Fourth Amendment question about how to think about probable cause for multi-part legal requirements. If a law makes something illegal in situation X, but not in situation Y, is it always/sometimes/never necessary for the police to have probable cause to believe that X, and not Y, is the case? Or does it depend on how the law is formulated &#8212; for instance, as a complete offense with an affirmative defense, as a single sentence with an &#8220;unless&#8221; clause,&#8221; as a single sentence without an &#8220;unless&#8221; clause, or something else? For instance, off the top of my head, I wondered about:</p>
<blockquote>
<ul>
<li>A person carrying a firearm who might or might not have a concealed-weapons permit.</li>
<li>A person carrying a firearm who might or might not be a felon.</li>
<li>A person exceeding the speed limit who might or might not be a government official, in an unmarked car, entitled to the &#8220;public authority&#8221; defense.</li>
<li>A person on private property who might or might not be a trespasser.</li>
<li>A person <a href="https://www.thenewspaper.com/rlc/docs/2016/us-texting.pdf">using a smartphone with one hand while driving who might or might not be texting</a>.</li>
</ul>
</blockquote>
<p>My intuitions about each of these &#8220;might or might not&#8221; clauses is not exactly the same, and I wonder whether it is possible to come up with a categorical rule for dealing with them. If it is, perhaps the best solution is an intermediate one. Surely a police officer is not required to affirmatively rule out every innocent explanation for possibly criminal conduct. At the same time, a police officer is not allowed to assume that every uncertain situation is a criminal one. So perhaps a police officer must at least have probable cause to doubt that the innocent explanation is true.</p>
<p>Or perhaps there&#8217;s a more satisfying solution to this problem that I haven&#8217;t encountered yet.</p>
<p>Finally, there did seem to be a lingering question about whether the entire legal apparatus of the law of &#8220;traffic stops&#8221; can really be fairly applied to parking violations and other non-moving violations. This approach might do a better job of capturing what really troubled some of the judges about this kind of police encounter. But it may require some technical line drawing about the difference between traffic and parking, which at oral argument devolved into a discussion of the &#8220;leading treatise on Wisconsin traffic law&#8221; and whether a crosswalk violation was a moving violation under Wisconsin law.</p>
<p>From what I know so far, the lawfulness of this stop strikes me as a very close case. But I emerged from the argument more interested in Wisconsin traffic law than I had ever been before.</p>Will BaudeThu, 01 Dec 2016 13:35:34 +0000qZvURZZ7nC7h8Xu6[Eugene Volokh] The defender generalhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/30/the-defender-general/<p>The <a href="http://defgen.vermont.gov/">defender general</a>, I just learned, is not a general at the Defense Department (okay, I didn&#8217;t think that would be it) &#8212; that&#8217;s the title of the head public defender in Vermont, presumably by analogy to attorney general. Those zany East Coasters, with their <a href="http://www.co.lancaster.pa.us/672/Activities-of-the-Prothonotary">prothonotaries</a> and their <a href="http://volokh.com/posts/1250098328.shtml">prochein amies</a> and their defender generals.</p>Eugene VolokhWed, 30 Nov 2016 15:37:18 +0000xM0al7do6rKFeKFS[Will Baude] Ordinary investigative stop, or “extraordinary” and unlawful police tactics?http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/ordinary-investigative-stop-or-extraordinary-and-unlawful-police-tactics/<p>In addition to the Title VII sexual orientation case <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/does-federal-law-already-ban-discrimination-on-the-basis-of-sexual-orientation/?utm_term=.f7e58f5e7d33">I just posted about</a>, the Seventh Circuit will also hear en banc arguments tomorrow in <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&#038;Path=Y2016/D05-17/C:15-1366:J:Easterbrook:aut:T:fnOp:N:1755259:S:0">United States v. Johnson</a>, a criminal case that is the real reason I am going to the arguments tomorrow. </p>
<p>In a nutshell, police saw a vehicle stopped at a crosswalk, pulled two vehicles up next to it and shined bright lights on it, then saw a passenger trying to hide a gun which turned out to be unlawfully possessed by a felon. The question is whether there was a Fourth Amendment violation that justifies excluding some of the evidence. Judge Easterbrook&#8217;s opinion for the panel is short and covers a lot of ground, but near as I can tell there are three separate issues.</p>
<p>1: Was there reasonable suspicion/probable cause to initiate a stop? Under Wisconsin law, standing at a crosswalk <a href="https://docs.legis.wisconsin.gov/statutes/statutes/346/VIII/53">is permissible</a> &#8220;temporarily for the purpose of and while actually engaged in loading or unloading or in receiving or discharging passengers.&#8221; The car here had its motor running on a side street next to a liquor store, and might well have been there temporarily while somebody went to or from the store; it&#8217;s not clear the police officers observed the car long enough to even know whether this was true or not.</p>
<p>The <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&#038;Path=Y2016/D05-17/C:15-1366:J:Easterbrook:aut:T:fnOp:N:1755259:S:0">panel</a>&#8216;s main response is that &#8220;officers need not negate all possible defenses. They can hand out tickets (or make arrests) and leave to the judicial process the question whether a defense applies.&#8221; It&#8217;s not clear to me whether this is technically a &#8220;defense&#8221; under Wisconsin law, but in any event I don&#8217;t have the same categorical intuition here. When police officers see a gun, can they make an arrest and then leave to the judicial process the question whether the holder had a gun permit? When police officers see a person on private property, can they arrest him and then leave to the judicial process the question whether he had the consent of the owner to be there (or was the owner)? Or do they instead need good reason to doubt that the gun-owner has a permit, or good reason to think that the person is a trespasser?</p>
<p>It seems right that officers need not always be sure that the activity falls into an unlawful category &#8212; that&#8217;s why it&#8217;s called &#8220;reasonable suspicion&#8221; or &#8220;probable cause,&#8221; not &#8220;proof.&#8221; But I am not sure that &#8220;defenses&#8221; are the right way to think about this. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2013446">Robert Leider has an article arguing</a> that the element/defense distinction should not do any work in this area, and I am inclined to think that&#8217;s right. Maybe there&#8217;s still probable cause here on the facts, but not because police didn&#8217;t need to think about this issue.</p>
<p>2: Was there even a stop in the first place? This seems to be a backup argument for the government to #1. Here&#8217;s the panel again:</p>
<blockquote><p>Indeed, because the car was stopped in a public street, police did not need any reason at all to approach and look through the window. Officers do not violate the Fourth Amendment by viewing things they can see from a public vantage point where they have a right to be. It was the fact that the police approached the car that enabled them to see the gun. Everything else followed naturally (and legally). [Citations omitted.]</p></blockquote>
<p>I&#8217;m inclined to think that this is wrong, for reasons related to <a href="http://harvardlawreview.org/2016/05/the-positive-law-model-of-the-fourth-amendment/">The Positive Law Model of the Fourth Amendment</a>. It sounds like the police did more than just walk up to the car; they surrounded it and shined really bright lights on it. I suspect that if a gang of ordinary citizens did the same thing to a private person on the streets of Milwaukee they would be committing a tort or minor crime. And while I might well be wrong about that (need research some Wisconsin law when I have time), if I&#8217;m right about that it suggests that the police were doing something more than what an ordinary person could do, and hence should have some justification for it.</p>
<p>3?: In any event, says the panel, the exclusionary rule should not apply: </p>
<blockquote><p>We grant that the police did more than just stroll up: two squad cars, which bathed the parked car in bright light, implied that the occupants were not free to drive away. But as it happened the number of cars, and the use of lights, did not play a role in the causal sequence. (The cruisers&#8217; lights may have played some role by supplementing the streetlamps, but Johnson does not contend that shining light into a car on a public street is unreasonable under the Fourth Amendment. See Dunn, 480 U.S. at 305, 107 S.Ct. 1134.) No one was in the driver&#8217;s seat, so the parked car could not drive away, no matter what the occupants wanted or thought they were free to do. A lone officer who ambled up amiably and shone a flashlight through the window would have seen everything needed to set up a lawful seizure of the gun. When the contested activity (here, the show of force through the use of two cars and bright lights) does not matter, it is also not a basis for suppressing evidence. When discovery would have occurred anyway, through proper means, the exclusionary rule would be overkill and must not be employed.</p></blockquote>
<p>I&#8217;m least sure about the role of this argument in the Court&#8217;s opinion. </p>
<p>3a. Maybe it is being deployed to bolster #2: <em>I.e</em>., even if the police did engage in a stop, we should pretend that they did not because a non-stop would have had the same effect. This strikes me as an aggressive extension of the inevitable discovery doctrine, but it wouldn&#8217;t be the first aggressive extension of the inevitable discovery doctrine by the Seventh Circuit. (See <a href="http://caselaw.findlaw.com/us-7th-circuit/1001925.html">U.S. v. Tejada</a> and <a href="http://caselaw.findlaw.com/us-7th-circuit/1147720.html">U.S. v. Cazares-Olivas</a> for examples.)</p>
<p>3b. On the other hand, it might be that this is just meant to reject an <em>independent </em>argument that an <em>otherwise-lawful</em> stop can trigger the exclusionary rule if it is conducted in an offensive manner. This more modest version of #3 seems right to me (see <a href="http://www.yalelawjournal.org/comment/united-states-v-ankeny-remedying-the-fourth-amendments-reasonable-manner-requirement">Richard Re, Remedying the Fourth Amendment&#8217;s Reasonable Manner Requirement</a>), but if so then #3 is probably not very important, since it&#8217;s just rejecting an ancillary argument.</p>
<p>So I am inclined to see #1 as the key issue, and if the government wins I hope it is on that basis rather than #2 or #3a.</p>
<p>Meanwhile, Judge Hamilton&#8217;s panel dissent makes both a relatively dramatic argument for limiting Supreme Court precedent and a more modest argument about the facts of the case. His dissent begins:</p>
<blockquote><p>The police violated the Fourth Amendment rights of defendant Johnson and the four other occupants of the car. What happened here was extraordinary. No other court has tolerated such tactics in such a case. Five officers in two police squad cars seized the passengers of a parked car. They swooped in on the car, parking close beside and behind it, with bright lights shining into it from both directions, opened the doors, pulled all passengers out, and handcuffed them. The passengers were seized before the officers had any sign that one passenger might have a firearm.</p>
<p>The sole basis offered to justify this highly intrusive, even terrifying, “investigatory stop” was a suspected parking violation! The phenomenon of police seizures for “driving while black” has long been recognized. See, e.g., David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J.Crim. L. &#038; Criminology 544 (1997). In this case, we seem to be taking the further step of enabling police seizures for “parking while black.”</p>
<p>Taking this further step is a mistake not required by existing law, and it runs contrary to the core Fourth Amendment standard of reasonableness. There are two alternate grounds for reversal here. The first and broader is that the rule allowing pretextual traffic stops under the combination of Terry v. Ohio, and Whren v. United States, should not be extended to mere parking violations where the legal sanction would be only a citation and fine. The second and narrower ground is that even if such an extension is recognized in theory, the police did not have a reasonable basis for this seizure.</p></blockquote>
<p>There&#8217;s a lot to be said about the dissent too. (I am more inclined to the &#8220;second and narrower ground&#8221; than the &#8220;first and broader&#8221; one.) But I&#8217;ve already gone on too long, and I&#8217;m sure that all of these issues will be in play during the arguments tomorrow.</p>Will BaudeWed, 30 Nov 2016 00:59:56 +0000fywZSY6yGF13SXaB[Will Baude] Does federal law already ban discrimination on the basis of sexual orientation?http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/does-federal-law-already-ban-discrimination-on-the-basis-of-sexual-orientation/<p>As you may already know, every couple of years Congress considers whether to pass the <a href="https://en.wikipedia.org/wiki/Employment_Non-Discrimination_Act">Employment Non-Discrimination Act</a>, a federal statute that would ban employment discrimination on the basis of sexual orientation, much as discrimination on the basis of race, sex, etc. are already banned. So far, the legislation has not yet been enacted, and that was about where things stood when I was in law school, although since then one attempt, <a href="https://www.congress.gov/bill/110th-congress/house-bill/3685">H.R. 3685</a>, passed the House in 2007 by a 235-to-184 vote, and another, <a href="https://www.congress.gov/bill/113th-congress/senate-bill/815">S. 815</a>, passed the Senate in 2013 by a 64-to-32 vote.</p>
<p>So I have been somewhat intrigued in more recent years as an argument has emerged quite prominently in some federal courts that employment discrimination on the basis of sexual orientation is <i>already illegal</i>. The argument is that Title VII&#8217;s ban on sex discrimination also entails a ban on discrimination on the basis of sexual orientation, and it has gotten enough momentum that it is coming to the en banc U.S. Court of Appeals for the 7th Circuit on Wednesday in <em><a href="http://www.reuters.com/article/us-otc-civilrights-idUSKBN13N291">Hively v. Ivy Tech Community College</a></em>.</p>
<p>While it may seem surprising for a decades-old statute to suddenly be discovered to have an important new implication like this, the argument has something going for it. As various folks have already argued (<a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/28/the-sex-discrimination-rationale-for-a-right-to-same-sex-marriage-makes-an-appearance-in-todays-oral-argument/">including co-blogger Ilya Somin</a>) in various contexts, there is a sense in which sexual orientation can be seen as a form of formal sex discrimination. Plus there is a Supreme Court case, <em><a href="https://supreme.justia.com/cases/federal/us/490/228/case.html">Price Waterhouse v. Hopkins</a></em>, which holds that sex-based stereotyping is actionable under Title VII, and heteronormativity can be seen as a form of sex-based stereotyping. The Equal Employment Opportunity Commission <a href="https://www.eeoc.gov/decisions/0120133080.pdf">has also recently endorsed this argument</a>.</p>
<p>On the other hand, there is a less formal argument that this simply isn&#8217;t what Title VII was thought to cover when it was enacted &#8212; and that Congress&#8217;s repeated refusal to amend the statute since then confirms that the law has not yet changed. I sometimes think of this as the &#8220;but that can&#8217;t be right&#8221; principle of statutory interpretation, a lesser-known cousin of the absurdity doctrine. That principle brought us cases such as <em><a href="https://www.law.cornell.edu/supct/html/98-1152.ZO.html">FDA v. Brown &amp; Williamson</a></em> (rejecting the argument that cigarettes are drug delivery devices) or perhaps some of the votes in <em><a href="http://felonvoting.procon.org/sourcefiles/HaydenvPataki.pdf">Hayden v. Pataki</a></em> (felon disenfranchisement laws permissible under Section 2 of the Voting Rights Act). I tend to have very textualist instincts and so to be dubious of these kinds of arguments, but they do have their place.</p>
<p>There&#8217;s much more to be said about this important issue, but I haven&#8217;t made up my own mind about it. But I&#8217;ll be at the en banc argument Wednesday and will report back if anything interesting happens.</p>Will BaudeTue, 29 Nov 2016 23:03:07 +00003v0wRfvRabBdPk8l[Eugene Volokh] Will Baude is back!http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/will-baude-is-back/<p>I&#8217;m delighted to report that our old co-blogger Will Baude, who is a professor at the <a href="http://www.law.uchicago.edu/faculty/baude">University of Chicago Law School</a>, has returned to us. Will is the author of many articles on constitutional law, conflicts of laws, and statutory interpretation, as well as a former clerk for then-Judge Michael McConnell and for Chief Justice John Roberts; here are the titles of a few of his works, just so you can get a sense of his expertise:</p>
<ol>
<li>The Law of Interpretation, 130 Harv. L. Rev. ___ (forthcoming 2017) (with Stephen E. Sachs);</li>
<li>The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. ___ (forthcoming 2017) (with Ryan Doerfler);</li>
<li>Making Doctrinal Work More Rigorous: Lessons from Systematic Reviews, 84 U. Chi. L. Rev. ___ (forthcoming 2016) (with Adam S. Chilton &amp; Anup Malani);</li>
<li>The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1827 (2016) (with James Y. Stern);</li>
<li>Is Originalism Our Law?, 116 Colum. L. Rev. 2349 (2015);</li>
<li>Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738 (2013);</li>
<li>Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012).</li>
</ol>
<p>I very much look forward to Will&#8217;s posts.</p>Eugene VolokhTue, 29 Nov 2016 21:40:46 +00003ES31GFFdRNd7iwa[Eugene Volokh] No, you couldn’t strip flag-burners of citizenship, even if flag-burning could be made a crimehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/no-you-couldnt-strip-flag-burners-of-citizenship-even-if-flag-burning-could-be-made-a-crime/<div class="flex-embed">
<blockquote class="twitter-tweet" data-width="500">
<p lang="en" dir="ltr">Nobody should be allowed to burn the American flag &#8211; if they do, there must be consequences &#8211; perhaps loss of citizenship or year in jail!</p>
<p>&mdash; Donald J. Trump (@realDonaldTrump) <a href="https://twitter.com/realDonaldTrump/status/803567993036754944">November 29, 2016</a></p></blockquote>
<p><script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script></div>
<p>But even if flag-burning weren&#8217;t protected by the First Amendment (and <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/president-elect-trump-calls-for-flag-burning-ban/">it is</a>), you couldn&#8217;t strip people of their citizenship for it.</p>
<p>Let&#8217;s begin with the constitutional text, here from section 1 of the 14th Amendment:</p>
<blockquote><p>All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.</p></blockquote>
<p>Once you have American citizenship, you have a constitutional entitlement to it. If you like your American citizenship, you can keep your American citizenship &#8212; and that&#8217;s with the Supreme Court&#8217;s guarantee, see <a href="https://scholar.google.com/scholar_case?case=2521246303796542623"><i>Afroyim v. Rusk</i> (1967)</a>:</p>
<blockquote><p>There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.</p></blockquote>
<p>(Special bonus in <i>Afroyim</i>: a cameo appearance by a Representative Van Trump in 1868, who said, among other things, &#8220;To enforce expatriation or exile against a citizen without his consent is not a power anywhere belonging to this Government. No conservative-minded statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government.&#8221;) In <a href="https://scholar.google.com/scholar_case?case=10878205615669201947"><i>Vance v. Terrazas</i> (1980)</a>, all the justices agreed with this principle.</p>
<p>Now, as with almost all things in law &#8212; and in life &#8212; there are some twists. Naturalized citizens can lose their citizenship if they procured their citizenship by <a href="https://scholar.google.com/scholar_case?case=16482093096465080796">lying on their citizenship applications</a>; the premise there is that legal rights have traditionally been voided by fraud in procuring those rights. And citizens can voluntarily surrender their citizenship, just as people can generally waive many of their legal rights; this surrender can sometimes be inferred from conduct (such as voluntary service in an enemy nation&#8217;s army), if the government can show that the conduct was engaged in <a href="https://scholar.google.com/scholar_case?case=10878205615669201947">with the intent to surrender citizenship</a>.</p>
<p>But flag-burning, whether or not it is intended to express contempt for the United States (and burning an American flag, like flying the Confederate flag, can have many possible intentions), is generally not accompanied by an intent to renounce U.S. citizenship, nor is it generally evidence of any such intent. A college student&#8217;s expression of contempt for the college&#8217;s administration, or the college as a whole, doesn&#8217;t mean an intent to drop out of the college &#8212; it&#8217;s entirely consistent with an intent to make the best of a bad situation, or even to take advantage of the benefits provided by an institution that one despises. One might consider such an attitude dishonorable, depending on the circumstances, but it&#8217;s very plausible that the contemptuous student would have that attitude. That is even more clearly so as to a citizen&#8217;s expression of contempt for the current American administration, or even America as a whole (if that&#8217;s the flag-burner&#8217;s attitude), given how costly surrender of citizenship would be, especially when one lacks another country that will take one in.</p>
<p>So even if flag-burning could be made criminal (and, I note again, <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/president-elect-trump-calls-for-flag-burning-ban/?utm_term=.ee2c76dadcf5">it can&#8217;t be</a>), the 14th Amendment protects the flag-burner&#8217;s citizenship, just as it protects other criminals&#8217; citizenship.</p>Eugene VolokhTue, 29 Nov 2016 18:19:08 +00005vxIOK1PONnAqzUY[Eugene Volokh] President-elect Trump calls for flag-burning banhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/president-elect-trump-calls-for-flag-burning-ban/<div id="attachment_43838" style="width: 970px" class="wp-caption aligncenter"><img class="size-full wp-image-43838" src="http://www.washingtonpost.com/rf/image_960w/2010-2019/WashingtonPost/2016/11/11/National-Politics/Images/05626349.jpg" alt="" width="960" /><p class="wp-caption-text">A demonstrator drags a burning American flag through the streets during a protest against President-elect Donald Trump in Oakland, Calif., on Nov. 10. (Peter DaSilva/European Pressphoto Agency)</p></div>
<blockquote class="twitter-tweet" data-lang="en">
<p dir="ltr" lang="en">Nobody should be allowed to burn the American flag &#8211; if they do, there must be consequences &#8211; perhaps loss of citizenship or year in jail!</p>
<p>— Donald J. Trump (@realDonaldTrump) <a href="https://twitter.com/realDonaldTrump/status/803567993036754944">November 29, 2016</a></p></blockquote>
<p><script src="//platform.twitter.com/widgets.js" async="" charset="utf-8"></script></p>
<p>But the Supreme Court held that flag-burning is constitutionally protected symbolic expression (in an opinion joined by Justice Antonin Scalia), and the vote was 5-4 when the matter arose in 1989 and 1990; I suspect it would be much more strongly in favor of protection today. I also don&#8217;t think that the conservative justices will be swayed by the argument that &#8220;freedom of speech&#8221; means just speech, and not symbolism; as I discussed in &#8220;<a href="http://www.law.ucla.edu/volokh/symbolic.pdf">Symbolic Expression and the Original Meaning of the First Amendment</a>,&#8221; the Framing-era legal system viewed symbolic expression as tantamount to verbal expression &#8212; here&#8217;s an excerpt from that article:</p>
<blockquote><p>The First Amendment protects “speech” and “press,” not “expression”: so some argue, condemning the Court’s symbolic expression cases. Judge Robert Bork writes that “burning a flag is not speech and should not fall under First Amendment protection.” Senators Dianne Feinstein and Orrin Hatch agree, as do many journalists, activists, and commentators. Others similarly reason that the First Amendment doesn’t protect the wearing of symbolic armbands or Ku Klux Klan regalia, the symbolic refusal to salute a flag, or the burning of a cross. Judge Richard Posner concludes that “[n]othing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech,” partly because “[b]urning a flag is not even ‘speech’ in a literal sense.”</p>
<p>The Supreme Court has disagreed with the Bork/Hatch/Feinstein position. “[I]nherently expressive” or “conventionally expressive” symbolic expression, the Court has concluded, is basically functionally identical to expression through words and should thus be treated the same: the two convey messages through much the same mental mechanism, with much the same effects and for much the same speaker purposes. But are the Court’s critics right, at least if one focuses on the text and original meaning of the First Amendment? Is the Court’s doctrine here vulnerable to reversal given the Court’s growing turn to original meaning analysis?</p>
<p>Even conservatives on the Court and elsewhere have usually shown little interest in revisiting the Court’s general free speech/free press precedents, which now consist of hundreds of cases, or in adopting some Framers’ attitudes towards seditious libel or even offensive public speech generally. But returning the definition of “speech” and “press” to its original meaning might be feasible, and the call to return to this definition deserves to be considered.</p>
<p>This Essay argues that the Court has had it right all along, and that the Court’s critics are mistaken on originalist grounds. The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning:</p>
<p>1. Late-1700s and early-1800s courts treated symbolic expression and verbal expression as functionally equivalent when it came to speech restrictions, such as libel law, obscenity law, and blasphemy law. Symbolic expression, for instance, could be just as libelous as verbal expression.</p>
<p>2. This logic and tradition of equivalence extended to speech protections &#8212; a term I will use as shorthand for “free speech or free press protections” &#8212; as well as to speech restrictions. Paintings, liberty poles, and other symbolic expression (even outside the “press”) appeared to be no less and no more protected than spoken and printed words. In fact, the first American court decision striking down a government action on free speech or free press grounds (in 1839) treated symbolic expression and verbal expression as interchangeable.</p>
<p>3. And this equivalence of symbolic and verbal expression fits well with the original meaning of the First Amendment. Leading commentators St. George Tucker, Chancellor Kent, and Justice Joseph Story recognized that “the freedom of speech, or of the press” was tantamount to Madison’s original draft of the clause: the “right to speak, to write, or to publish.” And the term “to publish” included not just publishing printed works, but also publicly communicating symbolic expression, such as paintings, effigies, and processions.</p>
<p>The treatment of symbolic expression as equivalent with verbal expression makes historical sense as well as logical sense, because Framing-era English and American political culture was rich with symbolic expression, used interchangeably with words. A leading English holiday, Guy Fawkes’ Day (called Pope Day in the colonies), revolved around processions and burning effigies. In the first major protest against the Stamp Act, colonists placed on a “Liberty Tree” (in that case, a large elm) various effigies, including a “devil . . . peep[ing] out of a boot &#8212; a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act”; “[t]he effigies were then paraded around town, beheaded, and burned.” John Jay, coauthor of <i>The Federalist</i>, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, reportedly “wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold” &#8212; a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors.</p>
<p>English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is actually toasting the “King over the Water,” which is to say the Pretender, who lived in exile in France. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: forty-five toasts &#8212; representing Issue 45 of Wilkes’ <i>North Briton</i>, which got him prosecuted for seditious libel and made him a star &#8212; were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was “eaten from plates marked ‘No. 45’”; the Liberty Tree in Boston had its branches “thinned out so as to number forty-five.” Literal speech (the words of the toasts) was freely mixed with symbolic expression. [I only have the color version of the funeral procession picture; can you convert it into black and white as crisply as possible, or should I try to get our tech people to do it? Thanks!]</p>
<p>Likewise, 1790s Americans wore colored cockades in their hats to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung to mock the other side’s cockades. Some conducted mock funerals for the other side’s cockades (see the picture above). Others raised liberty poles, or burned “Liberty or Death” flags stripped from their adversaries’ liberty poles. Yet others planned an elaborate pantomime criticizing their Congressman, including the burning of a British flag, preceded by displays of the French and American flags crowned with liberty caps, the British flag flying upside down, and a gallows.</p>
<p>Colonists conducted funeral processions for liberty to protest the Stamp Act. After the Revolution, Americans burned copies of the Sedition Act and other federal laws, as well as copies of opponents’ publications that they saw as libelous (echoing the English legal practice of having libels be burned by the hangman). It is understandable that a culture that so often used symbolic expression as part of politics would see the freedom of speech and press as covering symbolic expression to the same extent as verbal or printed expression.</p>
<p>Likewise, it makes sense that the Supreme Court’s protection of symbolic expression dates back to the very first Supreme Court decision striking down any government action on free speech or free press grounds. The Court in that 1931 case casually assumed that symbolic expression was as protected as verbal expression, and treated the display of a red flag as legally tantamount to antigovernment speech. But its assumption was consistent with the First Amendment’s original meaning: the equivalence of symbolic expression and verbal expression has been part of American law since the Framing era.</p></blockquote>
<p>Of course, the court&#8217;s flag-burning decisions could be overturned by a constitutional amendment; for one reason why I think that would be a very bad idea &#8212; and would jeopardize a great deal more expression than just flag-burning &#8212; see <a href="http://volokh.com/archives/archive_2004_06_06-2004_06_12.shtml#1086803836">here</a>.</p>Eugene VolokhTue, 29 Nov 2016 16:09:45 +0000NWbagweagX3XxsFi[Orin Kerr] The surprising implications of the Microsoft/Ireland warrant casehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/the-surprising-implications-of-the-microsoftireland-warrant-case/<p>The Justice Department <a href="https://www.justsecurity.org/wp-content/uploads/2016/10/Microsoft_14-2985-United-States-Appellee-Petition.pdf">filed a petition for rehearing last month</a> in the <a href="https://assets.documentcloud.org/documents/2997030/Microsoft-Ireland-2d-Cir-Opinion-20160714.pdf">Microsoft/Ireland warrant case</a>. Although I&#8217;m skeptical that rehearing will be granted, the Justice Department&#8217;s petition includes some fascinating updates about the practical effect of the Second Circuit&#8217;s decision. I looked into the Justice Department&#8217;s allegations on my own, and I was able to get a better sense of what was happening. At the very least, it suggests that the Microsoft case is having some surprising implications. And in some cases, the result seems to be a significant mess.</p>
<p><a href="https://assets.documentcloud.org/documents/2997030/Microsoft-Ireland-2d-Cir-Opinion-20160714.pdf">The Second Circuit&#8217;s decision</a> held that warrants for customer email are unenforceable when the provider opted to store emails on a server outside the United States. The statute only has extraterritorial effect, the Second Circuit reasoned, and that means it doesn&#8217;t apply to foreign-stored email. Treating the statute as a way to get email rather than a means of limiting access to email, the court ruled that the government couldn&#8217;t use a domestic warrant to compel the disclosure of emails stored abroad.</p>
<p>But here&#8217;s the twist. The court&#8217;s decision assumed that Internet providers knew where its customer emails were located and that emails could be accessed from those places. The Second Circuit&#8217;s opinion therefore left the government with some options. In particular, the government could pursue foreign legal process through Mutual Legal Assistance Treaties for email that was stored abroad.</p>
<p>It turns out that this assumption isn&#8217;t necessarily right. And that is creating some significant headaches.</p>
<p>Here&#8217;s what the Justice Department says in its petition for rehearing:</p>
<blockquote><p>Unlike Microsoft, some major providers cannot easily determine where customer data is physically stored, and some store different parts of customer content data in different countries. Major U.S.-based providers like Google and Yahoo! store a customer’s email content across an ever-changing mix of facilities around the world. To the extent content is stored abroad by the provider at the moment the warrant is served, the Opinion has now placed it beyond the reach of a Section 2703 warrant, even when the account owner resides in the United States and the crime under investigation is entirely domestic. At least in the case of Google, the information is also currently beyond the reach of a Mutual Legal Assistance Treaty request or<br />
any foreign law enforcement authority, because only Google’s U.S.-based employees can access customer email accounts, regardless of where they are stored; indeed, Google cannot reliably identify the particular foreign countries where a customer’s email content may be stored. Thus, critical evidence of crimes now rests entirely outside the reach of any law enforcement anywhere in the world, and the randomness of where within an intricate web of servers the requested content resides at a particular moment determines its accessibility to law enforcement.</p></blockquote>
<p>The petition adds:</p>
<blockquote><p>Major service providers like Google and Yahoo!, who store different pieces of information for a single customer account in various datacenters at the same time, and routinely move data around based on their own internal business practices, are now disclosing only those portions of customer accounts stored in the United States at the moment the warrant is served &#8212; even though, at least as to Google, the only employees who can access the entirety of a customer’s account, including those portions momentarily stored overseas, are located in the United States. Yahoo! has informed the Government that it will not even preserve data located outside the United States in response to a Section 2703 request, thereby creating a risk that data will be moved or deleted before the United States can seek assistance from a foreign jurisdiction, much less actually serve a warrant and secure the data. In addition, some providers are apparently unable to tell the Government, in response to Section 2703 disclosure orders, where particular data is stored or whether it is stored outside the United States, further frustrating law enforcement’s ability to access such data.</p></blockquote>
<p>I reached out to various Internet providers to see whether the Justice Department&#8217;s claims are correct. While I wasn&#8217;t able to get on-the-record responses, I was able to patch together a picture from &#8220;on background&#8221; discussions. Here&#8217;s my best sense of what is happening.</p>
<p>First, the major domestic Internet providers aren&#8217;t treating the Second Circuit&#8217;s decision as just a decision from one circuit. They have all decided to treat the Second Circuit decision as the law in effect everywhere. Part of that is for a good practical reason: Internet communications nearly always cross state lines, so it&#8217;s hard to have different rules for different circuits. And part of it is to put the burden on the government if it wants to challenge the providers&#8217; policies. The Justice Department can bring a legal challenge in a different circuit where the Microsoft decision is not binding, but the department has to go along with the providers&#8217; nationwide adoption of the Second Circuit&#8217;s decision unless or until that happens.</p>
<p>Second, the Justice Department&#8217;s factual assertions in its petition for rehearing are basically correct. The Microsoft case has revealed a significant division among service providers in terms of how their network architectures function. Some providers make a point of figuring out the country of origin of each user, and they try to store user emails in that country or region. Other providers don&#8217;t. Some providers know in what country a particular user&#8217;s email will be located, and that answer is reasonably stable over time. Other providers don&#8217;t, and it isn&#8217;t. Some providers can access email stored abroad from wherever it is located. Other providers can&#8217;t.</p>
<p>These differences didn&#8217;t matter before the Second Circuit&#8217;s decision because domestic providers complied with domestic search warrants regardless of data territoriality. Microsoft then challenged compliance with domestic search warrants in a case where the location of the emails was known (Ireland) and the emails could be accessed from that location. The court&#8217;s opinion assumed that technology was in place. And the decision is now working pretty much as expected for providers with that network architecture.</p>
<p>In particular, the court&#8217;s opinion is creating a sensible structure for providers that store contents of communications in the country or region where individual users preside. No system is perfect. But for providers that aim for data localization &#8212; putting the data in the country or region of its users &#8212; domestic law enforcement can generally use warrants to get the emails of people in the United States but need to use mutual legal assistance to get emails of those abroad. That&#8217;s a sensible result.</p>
<p>On the other hand, the Second Circuit&#8217;s decision has created a mess with some providers that have different network architectures. At least one major provider has a very fluid approach to data location. Email contents go wherever is easiest for the network at that moment. When a warrant comes in, the provider can query its network to find out which contents from the account are located on servers in the United States at that instant. But the mix of contents inside and outside the United States at any given time is impossible to predict. Even individual email messages may be split up in different countries. For example, a particular email message might be on a server in the United States while its associated attachment is on a server abroad.</p>
<p>To make matters more complicated, the network is structured at one major provider so that only employees from inside the United States can query it. This means that if the government wants to get access to the contents of the account, there is no apparent way to get access to the subset of the contents that are foreign-stored at the time legal process is executed.</p>
<p>This is a pretty surprising result. If you&#8217;re an FBI agent and you get a search warrant for a specific set of emails in a domestic suspect&#8217;s account, the provider will send you only the subset of responsive emails that happen to be in the United States when the provider pressed the button to retrieve the account records as part of the warrant execution. The rest is out of reach, even with foreign legal assistance, as there is no one abroad to query the network pursuant to foreign legal process.</p>
<p>In the run-up to the Second Circuit&#8217;s decision, a lot of folks pointed to the odd results that might follow from ruling for Microsoft. But here&#8217;s what I (and others) missed: I didn&#8217;t expect that major domestic providers would respond to a ruling that they can&#8217;t be <em>compelled</em> to disclose foreign-stored emails pursuant to a warrant by flatly refusing to disclose foreign-stored contents <em>voluntarily</em> when the target was domestic and the only reason that particular e-mail was foreign-stored at that instant was the fluid nature of the network&#8217;s architecture.</p>
<p>I didn&#8217;t expect that in part because domestic providers are still permitted to disclose the foreign-stored contents of communications under the Second Circuit&#8217;s decision. Providers are not required to make those disclosures. But they can if they want to, because the statute&#8217;s coverage acts as both a sword and a shield. On one hand, the statute is a sword that (at least as the Second Circuit reads it) forces providers to comply with legal process. On the other hand, the statute is a shield because it limits voluntary disclosure. The two go together. If a foreign-stored email is out of reach of the compelled disclosure rules, it also is out of reach of the voluntary disclosure limitations.</p>
<p>This means that a domestic provider with a network that moves contents around all the time can still disclose the contents of the account of a domestic person that happen to be domestic the moment the warrant comes in under the warrant while they can disclose the contents that happen to be stored abroad at that moment voluntarily. I assumed (perhaps naively) that major domestic providers would do that. But apparently that&#8217;s not happening.</p>
<p>Why not? One possibility is that the politics of the moment make the most pro-privacy approach the best course, even if it leads to weird results. Privacy is big business right now, especially in Europe. Perhaps providers figure that the safest political course is not to turn over what can&#8217;t be forcibly compelled.</p>
<p>Another possibility, albeit a remote one, is a concern that voluntary disclosure might raise Fourth Amendment problems. The provider acting pursuant to legal process is a state actor, the Second Circuit&#8217;s opinion says, and warrants can be executed only domestically. Perhaps providers fear that voluntary compliance raises Fourth Amendment issues.</p>
<p>But if that&#8217;s a concern, I don&#8217;t see it as a realistic one. First, the warrant requirement doesn&#8217;t apply overseas. That means that the only Fourth Amendment limit is reasonableness. Although the standards of foreign-search reasonableness are <a href="https://www.stanfordlawreview.org/print/article/the-fourth-amendment-and-the-global-internet/">murky</a>, I would think that relying on a judicial finding of probable cause and particularity sufficient to issue a traditional search warrant (if the data were inside the United States) is reasonable. The sign-off of a domestic warrant is generally considered the gold standard for reasonableness even for foreign searches, see United States v. Barona, 56 F.3d 1087, 1101-03 (9th Cir. 1995) (Reinhardt, dissenting), and I would think that would suffice. Second, because the disclosure is voluntary, and not required by court order, it&#8217;s not at all clear that the Fourth Amendment would apply in the first place under the state action doctrine.</p>
<p>I wonder whether the Justice Department will go into court to push this issue. In particular, it&#8217;s an open question whether the department can get the full contents of domestic target accounts by issuing a warrant and a subpoena simultaneously. The warrant would be for the domestically-stored parts of the account, while the subpoena would be for the foreign-stored parts of the account. If the Justice Department tries this and providers object, you might see litigation on whether or in what circumstances the subpoena can be enforced.</p>
<p>Alternatively, all of this seems like an ideal subject for congressional attention. Stay tuned.</p>Orin KerrTue, 29 Nov 2016 16:20:01 +0000iloiIwi12nJCHiqX[Ilya Somin] Updated Paperback edition of “The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain”http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/28/updated-paperback-edition-of-the-grasping-hand-kelo-v-city-of-new-london-and-the-limits-of-eminent-domain/<p><a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/04/final.pdf">final</a></p>
<p><img src="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/11/Kelo-Book-Cover-Final-Version-e1480228613737.jpg" alt="kelo-book-cover-final-version" width="550" height="825" class="aligncenter size-full wp-image-43803" /></p>
<p>My book <em>The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain</em> is now out in<a href="https://www.amazon.com/Grasping-Hand-London-Limits-Eminent/dp/022642216X/ref=tmm_pap_swatch_0?_encoding=UTF8&amp;qid=&amp;sr="> an updated paperback edition</a>. It includes a foreword that covers new developments in property rights and eminent domain law, such as <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-growing-battle-over-the-use-of-eminent-domain-to-take-property-for-pipelines/?utm_term=.fc5927dd134c">the growing conflict over the condemnation of property for private pipelines</a>, and the controversy over <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/19/donald-trumps-abuse-of-eminent-domain/?utm_term=.1ba92ff422bd">Donald Trump&#8217;s history of eminent domain abuse</a>. </p>Ilya SominMon, 28 Nov 2016 16:00:25 +0000fpCDjAb3LwSCttIT[Eugene Volokh] Short Circuit: A roundup of recent federal court decisionshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/28/short-circuit-a-roundup-of-recent-federal-court-decisions-31/<p>(Here is the latest edition of <a href="http://ij.org/about-us/shortcircuit/" target="_blank">the Institute for Justice’s weekly Short Circuit newsletter</a>, written by John Ross.)</p>
<blockquote><p>This week on the <a href="https://soundcloud.com/institute-for-justice/short-circuit-061">podcast</a>: A nursing student punished for off-campus speech; the CFPB’s unconstitutional structure; the right to intrastate travel; and compelled speech in the context of abortion.</p>
<ul>
<li>Maine state legislator, the speaker of the house, obtains job offer from charter school. The offer is rescinded after the governor, a political enemy of the speaker’s, threatens to withhold the school’s discretionary state funding. <a href="http://media.ca1.uscourts.gov/pdf.opinions/16-1492P-01A.pdf">First Circuit</a>: The speaker cannot sue the governor for retaliation.</li>
<li>Prosecutor likens convicted murderer, an African-American of large physical stature, to a “caveman,” “King Kong,” and a “beast of burden” and alerts jurors to the fact that he had sex with a white female prison guard. An all-white jury imposes the death penalty. <a href="http://www.ca4.uscourts.gov/Opinions/Published/163.P.pdf">Fourth Circuit</a>: The racially coded language undermines trust in the judicial system. Remanded for resentencing.</li>
<li>Federal law permits “agreements” whereby employees must pay dues or join a labor union as a condition of employment. State officials, however, are expressly permitted to ban such agreements. <a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0275p-06.pdf">Sixth Circuit</a>: In the absence of a state ban, officials in Hardin County, Ky., may enact a local ban.</li>
<li>Arson investigator investigates poorly, and an innocent Wexford County, Mich., man winds up in prison for several years. Can he sue the investigator? There’s no evidence the investigator intended to fabricate evidence or that he withheld evidence he knew to be exculpatory, says the <a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0611n-06.pdf">Sixth Circuit</a>, so no.</li>
<li>In 1949, the federal gov’t deeded large parcels in eastern Ohio to the state’s care on the condition that the land be used for flood control, conservation, and recreation. Recently, Ohio officials allowed fracking on the land. So must it revert back to federal ownership, as anti-fracking activists who discovered the deed restriction claim? No, says two-thirds of a <a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0277p-06.pdf">Sixth Circuit</a> panel.</li>
<li>Chicago police officer conspires with informant (a drug dealer) to kidnap, rob drug dealers and convinces the feds to drop an investigation into the informant’s other activities, which include murder. <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2016/D11-18/C:12-3680:J:Kanne:aut:T:fnOp:N:1865778:S:0">Seventh Circuit</a>: Conspiracy convictions affirmed.</li>
<li>Minneapolis police espy car idling in a high-crime area and decide to check on it. Would a reasonable person, on seeing police approach after activating their patrol car’s “wig wag” (rather than full-on emergency) lights, feel free to leave? Indeed so, says the <a href="http://media.ca8.uscourts.gov/opndir/16/11/153651P.pdf">Eighth Circuit</a>. So the occupants weren’t seized (until later), and there is no need to suppress the evidence.</li>
<li>Fortuna, Calif., officer shoots naked mentally ill man twice, killing him. The officer claims the man was standing and swinging a police baton, but the autopsy and dashcam video indicate the man was shot in the back while he was on the ground. <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/22/14-15098.pdf">Ninth Circuit</a>: No qualified immunity.</li>
<li>Thanks to new California rules, egg farmers face a choice: retrofit their hen housing so as to ensure hens have sufficient living space (a costly endeavor) or exit California’s market. <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/17/14-17111.pdf">Ninth Circuit</a>: The six states challenging the rules do not have standing (but perhaps could if they brought a new suit).</li>
<li>Federal law allows farmers to grow genetically engineered crops after they have demonstrated to the feds’ satisfaction that they are unlikely to be “plant pests.” <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/18/15-16466.pdf">Ninth Circuit</a>: Which preempts a Maui County, Hawaii, ban on such crops.</li>
<li>“The Court stands ready and willing to defer to agency expertise and discretion,” but not on a fact record this flimsy, says the <a href="https://www.ca10.uscourts.gov/opinions/14/14-9610.pdf">Tenth Circuit</a> (over a dissent), rejecting a new Consumer Product Safety Commission rule about rare-earth magnets.</li>
<li>Pre-trial detainee breaks his arm. Pickens County, Ala., corrections officials insist he pay for corrective surgery himself. He goes 15 months in their custody with a “frank non-union of the humerus.” <a href="http://media.ca11.uscourts.gov/opinions/pub/files/201511412.pdf">Eleventh Circuit</a>: He can sue several officials for deliberate indifference to his medical needs.</li>
</ul>
<p>Americans face a steadily increasing array of fines and surcharges when they enter the justice system (even when they’re innocent), such that even minor infractions can lead to long-term debt and impoverishment. Across the country, governments are using fines and fees to meet revenue goals connected only distantly, if at all, to the pursuit of justice. It’s a worrisome trend that portends the further breakdown of relations between police-cum-revenue agents and the communities they are meant to serve. The Supreme Court has a chance to address the issue this session. <a href="http://ij.org/wp-content/uploads/2016/11/33728-pdf-RAMIRIEZ-II.pdf">Click here to read</a> IJ’s amicus brief urging that course of action.</p></blockquote>Eugene VolokhMon, 28 Nov 2016 14:57:08 +0000EdDO8XCvigwaaDux[Eugene Volokh] “Protestants did not like the sexual marketing and theme of the business”http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/28/protestants-did-not-like-the-sexual-marketing-and-theme-of-the-business/<p>That&#8217;s from <i>Texas Alcoholic Beverage Comm&#8217;n v. Renewal Application of Memorial Beverage LLC d/b/a Twin Peaks</i> (May 13, 2016), and the record doesn&#8217;t reflect on whether Protestants were Protestants, Catholics or something else. &#8220;Protestants,&#8221; it turns out, is legalese for people who formally file a protest against an application, whether &#8220;a protest petition with the U.S. Patent and Trademark Office challenging the patentability of an invention&#8221; (the Black&#8217;s Law Dictionary definition) or an objection to some other application, such as for a liquor license. It&#8217;s not in standard English dictionaries, such as <a href="https://ahdictionary.com/word/search.html?q=protestant">the American Heritage Dictionary</a>, and I hadn&#8217;t seen it before, but it turns out to be fairly common in many states&#8217; licensing proceedings.</p>
<p>And remember, in D.C., &#8220;No protestant shall unreasonably refuse to make himself or herself available to attend a settlement conference.&#8221; Didn&#8217;t Martin Luther nail that to a door somewhere?</p>Eugene VolokhMon, 28 Nov 2016 14:07:52 +0000cEiKhd45bFNxGK06[Ilya Somin] Federalism, the Constitution, and sanctuary citieshttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/<p><div id="attachment_36197" style="width: 530px" class="wp-caption aligncenter"><img src="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/03/Statue-of-Liberty-e1458097283152.jpg" alt="Statue of Liberty seen from the Circle Line ferry, Manhattan. New York City is one of the &quot;sanctuary cities&quot; that are committed to refusing cooperation with Donald Trump&#039;s plans for mass deportation." width="520" height="693" class="size-full wp-image-36197" /><p class="wp-caption-text">Statue of Liberty seen from the Circle Line ferry, Manhattan. New York City is one of the &#8220;sanctuary cities&#8221; that are committed to refusing cooperation with Donald Trump&#8217;s plans for mass deportation.</p></div><br />
President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as <a href="http://www.newyorker.com/news/news-desk/the-limits-of-sanctuary-cities">federal law enforcement personnel are extremely limited</a>. But numerous cities have &#8220;sanctuary&#8221; policies under which they are committed to refusing cooperation with most federal deportation efforts. They include<a href="http://www.slate.com/articles/news_and_politics/cover_story/2016/11/how_cities_could_thwart_donald_trump_s_deportation_plan.html"> New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations</a>. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because <a href="http://www.latimes.com/local/lanow/la-me-ln-los-angeles-police-immigration-20161114-story.html">local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime</a>. They also recognize that mass deportation <a href="https://www.americanactionforum.org/research/the-budgetary-and-economic-costs-of-addressing-unauthorized-immigration-alt/">would have severe economic costs</a>.</p>
<p>Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like <a href="https://www.oyez.org/cases/1996/95-1478"><em>Printz v. United States</em> (1997)</a> and <em>New York v. United States</em> (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal &#8220;commandeering&#8221; of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in<em> Printz</em>. </p>
<p>Trump has said that he <a href="http://www.nydailynews.com/news/politics/trump-plan-defund-sanctuary-cities-play-article-1.2885423">intends to break the resistance of sanctuary cities by cutting off all of their federal funding</a>. The cities <a href="http://money.cnn.com/2016/11/19/news/economy/sanctuary-cities-trump-funding/">might continue resisting even if they do lose some federal funds</a>. But Trump&#8217;s threat is not as formidable as it might seem. </p>
<p>Few if any <a href="https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/03-05-13federalgrantsonecol.pdf">federal grants to state and local governments</a> are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they <a href="https://supreme.justia.com/cases/federal/us/451/1/case.html#17">are &#8220;unambiguously&#8221; stated in the text of the law &#8220;so that the States can knowingly decide whether or not to accept those funds.&#8221;</a> In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can&#8217;t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.</p>
<p>The looming fight over sanctuary cities is an example of how federalism and constitutional limitations on federal power can sometimes protect vulnerable minorities &#8211; in this case undocumented immigrants. States and localities have a reputation for being enemies of minority rights, while the federal government is seen as their protector. That has often been true historically. But sometimes the situation is reversed &#8211; a pattern <a href="http://volokh.com/2012/03/13/heather-gerkens-progressive-defense-of-federalism/">that has become more common in recent years</a>.</p>
<p>Many deportation advocates claim it is essential to enforce the law against all violators. But <a href="http://www.bloombergview.com/articles/2014-12-04/law-puts-us-all-in-same-danger-as-eric-garner">the vast majority of Americans have violated the law at some point in their lives</a>, and few truly believe that all lawbreaking should be punished, regardless of the nature of the law in question or the reason for the violation. And <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/07/do-illegal-immigrants-have-an-obligation-to-obey-laws-banning-them-from-entering-the-united-states/">few have more defensible reasons for violating law than undocumented migrants whose only other option is a lifetime of Third World poverty and oppression</a>. In any event, even if there is an obligation to enforce a particular law, it does not follow that the duty falls on state and local governments.</p>
<p>At this point, it is not yet clear how far Trump intends to push his deportation agenda. <a href="http://www.cnn.com/election/results/exit-polls/national/president">Election exit polls</a> suggest that mass deportation is not a popular policy, with 70% of the public believing that undocumented migrants working in the US should be offered permanent residency, and only 25% indicating they should be deported. The spectacle of the federal government trying to deport large numbers of people in the face of local resistance is unlikely to make good PR for the Trump administration. Perhaps that will lead them to scale back their ambitions.</p>
<p>Should Trump choose to pursue a policy of mass deportation regardless of the potential downsides, sanctuary cities can refuse to cooperat with it. And they will have the Constitution on their side. </p>Ilya SominSat, 26 Nov 2016 16:05:06 +0000byr7FwFjAYGpOBnN[Eugene Volokh] Can businesses refuse to serve — or employ — Trump supporters?http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/25/can-businesses-refuse-to-serve-or-employ-trump-supporters/<p><a href="http://www.kob.com/albuquerque-news/business-owner-refusing-service-president-elect-donald-trump-supporters-matthew-blanchfield-1st-in-seo-internet-marketing-company/4325531/?cat=500">KOB-TV (Albuquerque)</a> reports on <a href="https://www.1stinseo.com/trump-supporters-client-accounts-canceled/">a New Mexico business that refuses to deal with Trump supporters</a>; the owner of the business, an Internet marketing company, posted an item saying:</p>
<blockquote><p>&#8230; 1st In SEO will no longer do business with any person that is a registered Republican or supports Donald Trump. 1st In SEO will also not do business with business interests that support either the Republican Party or Donald Trump. 1st In SEO obviously has no actual means of determining our clients’ or prospective clients’ political standing. We will rely on the integrity of the men and women who are our clients currently to find another Search Engine Optimization provider if they are Republicans, voted for Donald Trump or support Donald Trump. If you are a Republican, voted for Donald Trump or support Donald Trump, in any manner, you are not welcome at 1st In SEO and we ask you to leave our firm.</p>
<p>1st In SEO will do everything in our power to ensure that we break ties with any person or business that supports Fascism. We will communicate our political stance clearly to all prospective new clients. We will also aggressively advertise the fact that 1st In SEO will not do business with Republicans or anyone who supports our country’s president elect.</p>
<p>We ask you, our current clients, to please respond to this letter and confirm where you stand politically. If you are a Republican or support Trump, we will no longer serve you. You will need to find a new SEO provider. 1st In SEO will, of course, provide your website with the same high quality service you have enjoyed until you are able to find a new provider&#8230;.</p></blockquote>
<p>Is a private business&#8217;s refusing to serve people based on their political affiliation legal? How about firing employees for their politics (something that might be implied by &#8220;you are not welcome at 1st In SEO and we ask you to leave our firm&#8221; and &#8220;break ties with any person&#8221;)? It turns out that this depends on the jurisdiction, and on whether the business is discriminating against clients or employees. The First Amendment doesn&#8217;t apply to such private businesses (incidentally, whether or not they take government funds, see <a href="https://scholar.google.com/scholar_case?case=10176312845394846270"><i>Rendell-Baker v. Kohn</i></a> (1982)), and federal law generally doesn&#8217;t ban political affiliation discrimination, so it ends up being a matter of state and local law. In New Mexico, for instance, discriminating against clients on this basis is legal &#8212; but firing employees, or threatening to fire them, based on their politics is a felony.</p>
<p>1. Most states ban most businesses from discriminating against clients based on the clients&#8217; race, religion, sex or national origin. Federal law does the same, though for a narrower set of businesses (and doesn&#8217;t cover sex discrimination); it also adds a ban on disability discrimination. Many states and some cities also ban discrimination based on sexual orientation, marital status and various other attributes.</p>
<p>But political affiliation is rarely on the list. A few cities or counties do ban such discrimination. D.C. bans discrimination based on &#8220;the state of belonging to or endorsing any political party.&#8221; Seattle bans such discrimination based on &#8220;any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group,&#8221; &#8220;includ[ing] membership in a political party or group and includ[ing] conduct, reasonably related to political ideology, which does not interfere with job performance.&#8221; There are a few other places on this list. But New Mexico doesn&#8217;t ban such discrimination in public accommodations, and neither do the city of Albuquerque or Bernalillo County.</p>
<p>One can debate whether such discrimination should be outlawed, by analogy to various other forms of discrimination. Perhaps if wedding photographers can&#8217;t discriminate against same-sex weddings (which New Mexico courts have indeed said), Internet marketing companies shouldn&#8217;t be able to discriminate against people who have particular views. Or perhaps such antidiscrimination laws shouldn&#8217;t be expanded further, or should even be cut back, to leave people free to choose whether to refuse to do business with others, whether or not we&#8217;d approve of that choice. But, as a matter of current law, such discrimination against Trump supporters (or Hillary Clinton supporters or Communists or libertarians or whoever else) is legal.</p>
<p>2. Many states and some cities and counties, however, do ban discrimination against employees &#8212; or at least firing of current employees &#8212; based on their political activity (with different jurisdictions defining such activity differently). I discuss this in detail in my article <a href="http://www.law.ucla.edu/volokh/empspeech.pdf">&#8220;Private Employees&#8217; Speech and Political Activity: Statutory Protection Against Employer Retaliation</a>,&#8221; but here&#8217;s the New Mexico statute, enacted in 1912, when New Mexico became a state:</p>
<blockquote><p>Coercion of employees [a fourth degree felony] consists of &#8230; any person having under his control or in his employment persons entitled to vote at any election, directly or indirectly discharging or threatening to discharge such employee because of the employee&#8217;s political opinions or belief or because of such employee&#8217;s intention to vote or refrain from voting for any candidate, party, proposition, question or constitutional amendment.</p></blockquote>
<p>Threatening an employee with dismissal because he supports Trump is thus a felony in New Mexico (and also likely <a href="https://scholar.google.com/scholar_case?case=7598148179438903441">a tort</a>, so the dismissed employee can sue even if the prosecutor chooses not to prosecute). </p>
<p>How does this affect the SEO CEO&#8217;s statement? The statement is ambiguous. It mostly talks about not dealing with Trump-supporting customers or Republican customers. But it also includes language that seems to threaten retaliation against employees, too &#8212; as I noted, it says: &#8220;If you are a Republican, voted for Donald Trump or support Donald Trump, in any manner, you are not welcome at 1st In SEO and we ask you to leave our firm&#8221; and &#8220;1st In SEO will do everything in our power to ensure that we break ties with any person or business that supports Fascism&#8221; (apparently referring, in this case, to Trump or Republicans). And, as <a href="https://scholar.google.com/scholar_case?case=11692165051185764542">the Supreme Court has recognized</a> with regard to labor law, courts should interpret an employer&#8217;s statements &#8220;tak[ing] into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.&#8221;</p>
<p>One way of thinking about this might be to imagine someone making this statement, in a context where religious discrimination against clients isn&#8217;t banned, but religious discrimination against employees is banned. (Federal law, for instance, generally bans religious discrimination by private employers that have more than 15 employees, but only bans religious discrimination against patrons in a limited set of businesses, such as hotels and restaurants.) Say that the employer had emailed his employees as follows:</p>
<blockquote><p>[We] will no longer do business with any person [who is Muslim]. [We] will also not do business with business interests that support [Islam]. [We] obviously [have] no actual means of determining our clients’ or prospective clients’ [religious affiliation]. We will rely on the integrity of the men and women who are our clients currently to find another Search Engine Optimization provider if they are [Muslims]. If you are a [Muslim], you are not welcome at [our business] and we ask you to leave our firm.</p>
<p>[We] will do everything in our power to ensure that we break ties with any person or business that supports [Islam]. We will communicate our political stance clearly to all prospective new clients. We will also aggressively advertise the fact that [we] will not do business with [Muslims].</p>
<p>We ask you, our current clients, to please respond to this letter and confirm where you stand [religiously]. If you are a [Muslim], we will no longer serve you&#8230;.</p></blockquote>
<p>Set aside whether you think that refusing to do business with Muslims is morally equivalent to refusing to do business with Republicans or with Trump supporters, and focus on the question for which I&#8217;m offering this analogy: Would a company employee interpret this as threatening to fire Muslim employees (because of the &#8220;If you are a [Muslim], you are not welcome at [our business] and we ask you to leave our firm&#8221; and &#8220;[We] will do everything in our power to ensure that we break ties with any person or business that supports [Islam]&#8221;) as well as announcing a refusal to do business with Muslim customers? If you think that the employee would indeed treat this as applying to employees as well, then by the same logic the CEO&#8217;s actual statement would convey a similar message to Republican or pro-Trump employees, and would thus be criminal (and tortious) under New Mexico law.</p>
<p>In any event, if the CEO meant that pro-Trump employees are welcome at the business, that they aren&#8217;t being asked to leave the firm and that the firm won&#8217;t break ties with them because of their political affiliation, then the CEO would be wise to make that explicit.</p>
<p>Finally, I should note again what I noted as to item 1: One can certainly debate whether the law should indeed ban such discrimination against employees based on their political speech or opinions, and in fact most states don&#8217;t have such bans. (As best I can tell, all states do ban discrimination based on how an employee has voted, though; certainly at least nearly all do.) Perhaps employer refusal to deal with Communist sympathizers, or Trump supporters, or Clinton supporters, or whoever else should be permissible, as to employees as well as others. And perhaps that should apply to refusal to deal with Muslims, or evangelical Christians, or Jews, or Mormons, or refusal to deal based on other attributes as well; people have varying views on all that.</p>
<p>One can also debate whether such discrimination should be criminal; most forms of private discrimination aren&#8217;t. The rationale for criminalizing discrimination based on political speech or opinions seems to be that using this sort of coercive economic power to distort the political process is comparable to using bribes to distort the political process; query whether that rationale is sound. But here, as with item 1, I&#8217;m just reporting on what the law is &#8212; and, as you can tell, it can get pretty complicated.</p>Eugene VolokhSat, 26 Nov 2016 01:23:43 +00005DwwPLe69WvS7FIr[Orin Kerr] The electoral college shouldn’t choose Clinton: A response to Lessighttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/25/the-electoral-college-shouldnt-choose-clinton-a-response-to-lessig/<div id="attachment_43777" style="width: 970px" class="wp-caption aligncenter"><img class="size-full wp-image-43777" src="http://www.washingtonpost.com/rf/image_960w/2010-2019/WashingtonPost/2016/11/17/Others/Images/2016-11-16/clinton__05581479349331.jpg" alt="" width="960" /><p class="wp-caption-text">Hillary Clinton at a Children&#8217;s Defense Fund event on Nov. 16. (Nikki Kahn/The Washington Post)</p></div>
<p>In our constitutional system, people vote for president by <a href="https://www.archives.gov/federal-register/electoral-college/electors.html">picking &#8220;electors&#8221;</a> who pass on that vote as part of <a href="https://www.archives.gov/federal-register/electoral-college/about.html">the electoral college</a>. Elsewhere in The Post, <a href="https://www.washingtonpost.com/opinions/the-constitution-lets-the-electoral-college-choose-the-winner-they-should-choose-clinton/2016/11/24/0f431828-b0f7-11e6-8616-52b15787add0_story.html?utm_term=.9b1429a6efc2">Harvard Law professor Lawrence Lessig argues</a> that electors should vote for whichever candidate won the nationwide popular vote unless the people went &#8220;crazy&#8221; and voted for someone outside &#8220;the bounds of a reasonable judgment.&#8221; Because Hillary Clinton won the popular vote, and she is inside those bounds, the electors should not &#8220;veto&#8221; the public&#8217;s choice and should name her president.</p>
<p>This isn&#8217;t my area, but I&#8217;m sufficiently unpersuaded that I thought I might respond. It seems to me that Lessig&#8217;s proposal tries to merge two largely incompatible ideas.</p>
<p>In the first part of the essay, Lessig argues that the electors should exercise independent judgment because that was the original understanding of how the electoral college would work (citing <a href="http://avalon.law.yale.edu/18th_century/fed68.asp">Federalist No. 68</a>). According to Lessig, disagreeing with that step would be &#8220;an insult to our framers&#8221; that &#8220;should be rejected by anyone with any understanding of our democratic traditions.&#8221;</p>
<p>In the second part of the essay, however, Lessig argues that the electors should endorse the national popular vote winner because they should recognize the principle of &#8220;one person, one vote&#8221;<a href="https://en.wikipedia.org/wiki/One_man,_one_vote"> enunciated by the Supreme Court in the 1960s</a>. The electoral college system seems to violate that principle, if electors follow the votes in their states, because the Constitution fixes the number of electors for each state based on the sum of its senators and representatives rather than in proportion to its population. Voters in small states have more electoral college impact than voters in large states. That result &#8220;denies Americans the fundamental value&#8221; of &#8220;equal citizenship,&#8221; Lessig argues. The principle of &#8220;one person, one vote&#8221; should lead electors to vote for the popular vote winner instead of the vote-winner in their own state, at least if the national public didn&#8217;t &#8220;go crazy.&#8221;</p>
<p>This isn&#8217;t my area, as I said before, but I&#8217;m not sure these two ideas can be coherently merged. The original design of the electoral college seems incompatible with the version of &#8220;one person, one vote&#8221; that Lessig offers. It&#8217;s true, at least as I understand it, that the original design of the electoral college was for electors to exercise their independent judgment about who would be the best president. But if that&#8217;s right, it&#8217;s hard to see how electors would be exercising their independent judgment by deferring to the popular vote. That&#8217;s especially so because they would be deferring to the popular vote in other states that didn&#8217;t even vote for them as electors.</p>
<p>Similarly, if electors should follow &#8220;one person, one vote&#8221; at a national level, I don&#8217;t see why they should ignore that principle if they think &#8220;the people [went] crazy.&#8221; It&#8217;s hard to have electors follow an ancient principle that gives them independent judgment and yet simultaneously follow a newer principle that takes their judgment away. The two ideas don&#8217;t readily mix.</p>
<p>More broadly, I would think that any proposal for how electors should vote should be settled before an election rather than offered to resolve an election that already occurred. No voting system is perfect. But whatever the system is, its rules should be announced beforehand so the candidates can try to win under the understood rules.</p>Orin KerrFri, 25 Nov 2016 19:55:26 +0000mA3VtUGkQVtoKOob[Eugene Volokh] Edgewood College calls the police over “suck it up” Post-it notehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/25/edgewood-college-calls-the-police-over-suck-it-up-post-it-note/<p><a href="http://www.campusreform.org/?ID=8430">Victoria Stroup (Campus Reform)</a> and <a href="http://reason.com/blog/2016/11/23/students-reaction-to-trump-win-suck-it-u">Robby Soave (Reason&#8217;s Hit &amp; Run)</a> have the story; here&#8217;s an excerpt from the Campus Reform item:</p>
<blockquote><p>According to a letter sent out by Vice President for Student Development Tony Chambers [which the Campus Reform item reproduces — EV], a student at the college started a campaign to let students and others express their feelings about the outcome of the election by placing notes on a table in the commons.</p>
<p>One note — bearing the phrase “Suck it up, pussies!” &#8212; was placed on the inside window of the Office of Student Diversity and Inclusion, eliciting outrage within the traumatized academic community.</p></blockquote>
<p>According to the letter, the Post-it caused “[a] great deal of fear, sadness, and anger among students, faculty, and staff,” was “a targeted act of intimidation and cowardice,” and “constituted a Hate Crime&#8221; &#8212; so the school “reported [it] to the Madison Police Department.”</p>
<p>I&#8217;m not a fan of vulgarity (and though the pejorative “pussy” may well have come straight from <a href="http://languagelog.ldc.upenn.edu/nll/?p=24012">pussycat</a>, I think that today it does have a vulgar connotation in that sense); and, as a private college, Edgewood isn&#8217;t bound by the First Amendment — if it wants to ban the public use of the word “pussy,” even in political contexts, or for that matter phrases such as “<a href="https://scholar.google.com/scholar_case?case=7398433541275578772">Fuck the Draft</a>.” But the label “hate crime” is ridiculous here — chiefly because there&#8217;s no crime, though also because the recipients weren&#8217;t targeted based on their race, sex, religion, sexual orientation, or the other bases that are generally required for the legal label “hate crime” to apply; certainly no criminal prosecution for a “hate crime” would be possible here.</p>
<p>And beyond this, the school&#8217;s reaction is so ridiculously over-the-top that it just proves the Post-it writer&#8217;s message, even if I would have framed the message more politely. It&#8217;s like someone calling someone else a prick, and the other person responding in a way that seems to be perfectly captured by that pejorative.</p>
<p>I emailed Edgewood College to see whether the story accurately rendered the Chambers email, and to ask if they had anything further to say, and got this response:</p>
<blockquote><p>I can confirm that the image is a rendering of the email that Dr. Chambers sent to students, faculty and staff.</p>
<p>We have nothing to add in this matter.</p></blockquote>Eugene VolokhFri, 25 Nov 2016 19:18:07 +0000co0SYBiUw9MyZMPV[Jonathan H. Adler] Whatever happened to Michael Mann’s defamation suit? (2016 edition)http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/25/whatever-happened-to-michael-manns-defamation-suit-2016-edition/<p>More than four years ago, Penn State University climatologist Michael Mann &#8212; creator of the <a href="https://www.scientificamerican.com/article/behind-the-hockey-stick/">infamous &#8220;hockey stick&#8221;</a> &#8212; <a href="http://volokh.com/2012/10/23/mann-v-steyn-popcorn-time/">filed a defamation suit</a> against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute over a <a href="http://www.nationalreview.com/corner/309442/football-and-hockey-mark-steyn">few blog posts</a> that attacked Mann in colorful terms, accusing him of &#8220;molesting” data to produce the graph and comparing PSU’s investigation of his alleged improprieties to its inquiry into the child molestation accusations against <a href="http://www.cnn.com/2016/08/12/us/pennsylvanias-sandusky-appeal/">Jerry Sandusky</a>. The posts at issues were harsh. Mann thinks they were also defamatory, so he sued.</p>
<p>What should have been a straightforward defamation claim has been anything but. The litigation got bogged down in a series of <a href="https://popehat.com/tag/michael-mann-lawsuit/">procedural issues</a> (compounded by Steyn&#8217;s disagreements with the other defendants). But that&#8217;s hardly been the only source of delay.</p>
<p>Two years ago today, the D.C. Court of Appeals heard oral argument on the defendants&#8217; (save Steyn) appeal of the trial court’s denial of their anti-SLAPP (anti-strategic lawsuit against public participation) suit motion. <a href="https://popehat.com/2014/05/02/d-c-court-of-appeals-agrees-to-hear-merits-of-anti-slapp-appeal-in-michael-manns-defamation-case/">Among the issues</a> was whether the denial of an anti-SLAPP motion to dismiss may be immediately appealed. This is somewhat ironic, as one purpose of SLAPP statutes is to expedite resolution of defamation claims due to their potential to chill protected speech.</p>
<p>As I&#8217;ve <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/02/whatever-happened-to-michael-manns-defamation-suit/?utm_term=.861c35d28b0c">noted before</a>, I think this should be a relatively easy case. However offensive or intemperate the posts at issue, they should be recognized as protected speech. To hold otherwise would be to<a href="https://popehat.com/2012/10/23/michael-mann-sues-nro-mark-steyn-the-competitive-enterprise-institute-and-rand-simberg/"> confuse hyperbolic rhetoric for actionable defamation</a>. Moreover, insofar as the statements at issue reflected the defendants&#8217; sincere belief that Mann manipulated his data to exaggerate the threat of climate change and that PSU&#8217;s cursory investigation into his conduct was insufficient, they do not demonstrate the degree of &#8220;actual malice&#8221; or &#8220;reckless disregard&#8221; for the truth necessary for a defamation claim, a point recognized even by folks who share Mann&#8217;s general views on climate science (such as <a href="http://legal-planet.org/2013/09/16/lies-damned-lies-and-climate-denial/">UCal Berkeley&#8217;s Daniel Farber</a>). Under Mann&#8217;s theory, George Zimmerman could sue anyone who claimed he &#8220;got away with murder&#8221; after killing Trayvon Martin. (Ditto equivalent claims about O.J. Simpson, Timothy Loehmann, etc.). It&#8217;s no wonder that so many media groups and others <a href="http://dcslapplaw.com/2014/11/12/temperatures-rise-in-mann-libel-suit/">filed amicus briefs</a> on the defendants&#8217; behalf.</p>
<p>Although this case arises out of a dispute over climate change, that&#8217;s not what the case is about. Climate change is a <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/14/what-does-it-take-to-convince-libertarians-and-conservatives-that-climate-change-is-a-problem/?utm_term=.60b95410d2da">serious problem</a>, and one that policymakers need to <a href="http://www.theatlantic.com/business/archive/2012/05/a-conservatives-approach-to-combating-climate-change/257827/">do more to address</a>. But legitimate concern about climate change should not be a pretense for chilling protected speech, whether by independent advocacy groups, opinion publications or others. Environmental concern is no reason to abandon constitutional principle or to dampen freedom of speech.</p>
<p>DISCLOSURE: As I’ve <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/09/mann-v-steyn-steyn-goes-his-own-way/">noted</a> in <a href="http://www.volokh.com/2012/08/22/mann-v-steyn/">prior</a> <a href="http://www.volokh.com/2013/08/20/mann-v-steyn-mann-wins-round-one/">posts</a> on this case, I am a contributing editor at National Review Online, which means I have a fancier byline when I submit articles to the publication and occasionally contribute to The Corner and Bench Memos. It is not a salaried position. I also worked at CEI from 1991 to 2000 — many years before the events at issue in this litigation.</p>Jonathan H. AdlerFri, 25 Nov 2016 14:05:42 +0000TNodsty4RiI71Zf9[Orin Kerr] Justice Scalia’s impact on Fourth Amendment lawhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/23/justice-scalias-impact-on-fourth-amendment-law/<p>Last week, at the <a href="http://www.fed-soc.org/events/page/2016-national-lawyers-convention-schedule">Federalist Society National Lawyers Convention</a>, I was on <a href="https://www.youtube.com/watch?v=dU1ZYPilAA8">an excellent panel about Justice Antonin Scalia and criminal law</a>. My co-panelists were <a href="https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&amp;personid=20660">Rachel Barkow</a>, <a href="https://www.law.upenn.edu/live/profiles/480-stephanos-bibas/profiles/quattroneaffiliated.php">Stephanos Bibas</a> and <a href="http://www.heritage.org/about/staff/l/paul-larkin">Paul Larkin</a>. <a href="http://www.fed-soc.org/experts/detail/david-stras">Justice David Stras</a> moderated. You can watch the entire panel <a href="https://www.youtube.com/watch?v=dU1ZYPilAA8">here</a>. It&#8217;s worth your time, I think, especially if you&#8217;re interested in criminal law and procedure.</p>
<div class="flex-embed"><iframe width="500" height="281" src="https://www.youtube.com/embed/dU1ZYPilAA8?feature=oembed" frameborder="0" allowfullscreen></iframe></div>
<p>My contribution addressed Scalia&#8217;s impact on Fourth Amendment law. I argued that that he had a substantial impact on the form of Fourth Amendment doctrine but less of an impact on its substance. My opening comments start at 4:25 and go to 15:15, focusing on the scope of rights. At exactly the one-hour mark, I discuss Scalia&#8217;s view of Fourth Amendment remedies, covering both the exclusionary rule and qualified immunity.</p>
<p>Let me add a word about measuring impact. I think there are two basic ways to measure a justice&#8217;s impact on a specific area of law. The more common approach is to focus on the specific votes the justice made and the majority opinions the justice wrote. You then consider the importance of those votes and opinions. A second and less common approach is to focus on the impact of the justice on how courts think about that area of the law. From that perspective, you look for the themes of that justice&#8217;s view of the law (whether expressed in majority opinions, other opinions or extra-judicial writing) and ask to what extent it was absorbed into what courts do. Either approach is perfectly legitimate, but my comments focus on the second approach instead of the first one.</p>Orin KerrWed, 23 Nov 2016 20:20:08 +0000xdTgC5awI3MjpT2y[Eugene Volokh] ‘Steer your way through the ruins / of the altar and the mall’http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/23/steer-your-way-through-the-ruins-of-the-altar-and-the-mall/<p>Leonard Cohen&#8217;s death reminded me that I hadn&#8217;t listened to his last few albums; here&#8217;s the opening of one song, &#8220;Steer Your Way,&#8221; that I much liked (though, as usual, the quoted lyrics can&#8217;t fully capture it):</p>
<blockquote><p>Steer your way through the ruins<br />
Of the altar and the mall<br />
Steer your way through the fables<br />
Of creation and the fall<br />
Steer your way past the palaces<br />
That rise above the rot<br />
Year by year<br />
Month by month<br />
Day by day<br />
Thought by thought</p></blockquote>
<div class="flex-embed"><iframe width="500" height="281" src="https://www.youtube.com/embed/qM71N3TchfQ?feature=oembed" frameborder="0" allowfullscreen></iframe></div>Eugene VolokhWed, 23 Nov 2016 17:14:22 +0000lopkpW3j172sCdgA[Eugene Volokh] Law firm’s use of potential target’s name and logo in ad isn’t ‘trademark dilution’http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/23/law-firms-use-of-potential-targets-name-and-logo-in-ad-isnt-trademark-dilution/<p>So the Georgia Supreme Court held Monday in <a href="http://www.gasupreme.us/wp-content/uploads/2016/11/s16a0655.pdf"><i>McHugh Fuller Law Group, PLLC v. PruitHealth, Inc.</i></a>, I think quite correctly. McHugh Fuller, a firm that sues nursing homes, ran this ad in a local newspaper:</p>
<div id="attachment_43724" style="width: 633px" class="wp-caption aligncenter"><img class="wp-image-43724 size-full" src="http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2016/11/McHughFuller.jpg" alt="McHughFuller" width="623" height="851" /><p class="wp-caption-text">(From court documents)</p></div>
<p>PruittHealth sued under a &#8220;trademark dilution&#8221; theory, claiming that the ad misused its name and logo. It didn&#8217;t claim that customers would likely be misled into thinking that PruittHealth endorsed the ad (that&#8217;s a more standard trademark claim, brought under a consumer confusion theory); rather, it claimed that McHugh Fuller&#8217;s ad impermissibly diluted PruittHealth&#8217;s trademark. But the court rejected the claim:</p>
<blockquote><p>[Under the Georgia trademark dilution statute,] OCGA § 10-1-451 (b) &#8230;, actionable trademark dilution can take two forms:</p>
<blockquote><p>The first is a “blurring” or “whittling down” of the distinctiveness of a mark. This can occur where the public sees the mark used widely on all kinds of products. The second type of dilution is tarnishment which occurs when a defendant uses the same or similar marks in a way that creates an undesirable, unwholesome, or unsavory mental association with the plaintiff&#8217;s mark.</p></blockquote>
<p>&#8230; At issue in this case is tarnishment, which OCGA § 10-1-451 (b) describes as “subsequent use by another of the same or any similar trademark, trade name, label, or form of advertisement” adopted and used by a person, association, or union “if there exists a likelihood of injury to business reputation &#8230; of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services.” This theory of liability “has had some success when defendant has used plaintiff&#8217;s mark as a mark for clearly unwholesome or degrading goods or services.” &#8230;</p>
<blockquote><p>The selling power of a trademark &#8230; can be undermined by a use of the mark with goods or services such as illicit drugs or pornography that ‘tarnish’ the mark&#8217;s image through inherently negative or unsavory associations, or with goods or services that produce a negative response when linked in the minds of prospective purchasers with the goods or services of the prior user, such as the use on insecticide of a trademark similar to one previously used by another on food products.</p></blockquote>
<p>The basic idea is that “the consumer&#8217;s distaste for the unsavory or inferior product has ‘rubbed off’ on the famous trademark, thereby damaging it.”</p>
<p>However, not every unwelcome use of one&#8217;s trademark in the advertising of another provides a basis for a tarnishment claim. Tarnishment can occur “only if the defendant uses the designation as its own trademark for its own goods or services.” “[C]ases in which a defendant uses the plaintiff&#8217;s mark to refer to the plaintiff in a context that harms the plaintiff&#8217;s reputation are not properly treated as tarnishment cases.” &#8230; “[E]xtension of the antidilution statutes to protect against damaging nontrademark uses raises substantial free speech issues and duplicates other potential remedies better suited to balance the relevant interests.” &#8230;</p>
<p>Here, McHugh Fuller was advertising its legal services to individuals who suspect that their loved ones have been harmed by negligent or abusive nursing home services at a specific PruittHealth nursing home. The ad used PruittHealth&#8217;s marks in a descriptive manner to identify the specific PruittHealth facility; indeed, McHugh Fuller was counting on the public to identify PruittHealth-Moultrie by the PruittHealth marks used in the ad.</p>
<p>The ad did not attempt to link PruittHealth&#8217;s marks directly to McHugh Fuller&#8217;s own goods or services. McHugh Fuller was advertising what it sells &#8212; legal services, which are neither unwholesome nor degrading – under its own trade name, service mark, and logo, each of which appears in the challenged ad. No one reading the ad reproduced above would think that McHugh Fuller was doing anything other than identifying a health care facility that the law firm was willing to sue over its treatment of patients. In short, the ad very clearly was an ad for a law firm and nothing more&#8230;.</p>
<p>PruittHealth has cited no case analogous to this one to support its position. PruittHealth relies on <i>Original Appalachian Artworks</i>, but there a federal district court found tarnishment under Georgia&#8217;s anti-dilution statute because the defendant&#8217;s “Garbage Pail Kids” cards and stickers “derisively depict[ed] dolls with features similar to [the plaintiff&#8217;s] Cabbage Patch Kids dolls in rude, violent and frequently noxious settings.” PruittHealth also cites <i>Pillsbury Co. v. Milky Way Productions, Inc.</i>, but there the district court found tarnishment under Georgia&#8217;s anti-dilution statute because the defendant used Pillsbury&#8217;s “Poppin&#8217; Fresh” and “Poppie Fresh” trade characters along with its trademark and jingle in a highly sexualized and “depraved context” in the magazine <i>Screw</i>. And in <i>NBA Properties v. Untertainment Records LLC</i>, the district court found tarnishment under federal and New York law where the defendant juxtaposed a distorted NBA logo containing the silhouetted basketball player with a gun in his right hand and the words “SPORTS, DRUGS, &amp; ENTERTAINMENT.” See also <i>PepsiCo, Inc. v. #1 Wholesale, LLC</i> (finding tarnishment under federal law and OCGA § 10-1-451 (b) where the defendants advertised and sold bottle, can, and food cannister safes for the concealment of illicit narcotics manufactured using plaintiff PepsiCo&#8217;s products and bearing its famous Pepsi, Doritos, and other trademarks); Sandra L. Rierson, <i>The Myth and Reality of Dilution</i>, 11 Duke L. &amp; Tech. Rev. 212, 247 n.125 (2012) (collecting additional cases where dilution by tarnishment has been found, all of which involve the defendant&#8217;s association of a mark with sex or illegal drugs).</p>
<p>Contrary to PruittHealth&#8217;s assertion in the trial court, trademark law does not impose a blanket prohibition on referencing a trademarked name in advertising. “Indeed, it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference, or any other purpose without using the mark. Moreover, interpreting OCGA § 10-1-451 (b) expansively to prohibit the use of PruittHealth&#8217;s marks to identify its facilities and services in any way, as the company urges, would raise profound First Amendment issues. “Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark.”</p>
<p>Accordingly, the trial court erred in entering the permanent injunction against McHugh Fuller based on OCGA § 10-1-451 (b). [Footnote: In light of this conclusion, we need not decide whether, as McHugh Fuller contends, OCGA § 10-1-451 (b) includes an implicit fair use defense like the express defense in the federal [trademark dilution statute].] If PruittHealth believes that McHugh Fuller&#8217;s advertisements are untruthful or deceptive, the company must seek relief under some other statutory or common-law cause of action.</p></blockquote>Eugene VolokhWed, 23 Nov 2016 13:48:28 +0000EQ61iU3HafzSBXJP[Eugene Volokh] More on lawsuits against seemingly fake defendants, aimed at hiding online criticismhttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/22/more-on-lawsuits-against-seemingly-fake-defendants-aimed-at-hiding-online-criticism/<p>Paul Alan Levy, <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/10/dozens-of-suspicious-court-cases-with-missing-defendants-aim-at-getting-web-pages-taken-down-or-deindexed/?utm_term=.d24373b90751">who cowrote our post</a> on dozens of suspicious court cases, with missing defendants, aiming at getting web pages taken down or deindexed, has been investigating the matter further, by intervening in a federal district court case that fit this pattern. (He is representing Myvesta, the company whose criticisms the lawsuit was aimed at deindexing.) And he has <a href="http://pubcit.typepad.com/clpblog/2016/11/richart-ruddie-companies-sent-forged-papers-to-rhode-island-federal-court.html">developments</a>:</p>
<blockquote><p>Last week, I appeared before Chief Judge William Smith, who, in addition to granting the blogger’s motion for leave to intervene, expressed chagrin at having been duped into signing the “consent order” and raised the possibility that the filing of forged papers violated various criminal statutes; he indicated that he was going to ask the United States Attorney for the District of Rhode Island to investigate&#8230;.</p>
<p>The check [for the filing fee for the case] was from RIR1984 LLC, the very company with which Rescue One Financial had contracted for services to get Steve Rhode’s critical web pages removed from search engine indexes. The individual signer for RIR1984 on the contract is Richart Ruddie, who, as Eugene Volokh and I reported last month, is apparently responsible for dozens of fake lawsuits around the country. And the go-between was “Annuity Sold,” a company with which Richart Ruddie himself has self-identified&#8230;.</p>
<p>Consequently, we have moved both to vacate the order, and to dismiss the complaint. Because the Rhode Island anti-SLAPP statute provides for awards of not only attorney fees but also compensatory and punitive damages if the lawsuit aimed at protected speech was “frivolous or were brought with an intent to harass the party or otherwise inhibit the party&#8217;s exercise of its right to petition or free speech,” we intend to argue that not only Ruddie and his company, but the debt relief company for whom Ruddie was serving as an agent in getting pages taken out of the Google search index, bear legal responsibility for [the] attorney fees and damages&#8230;.</p></blockquote>Eugene VolokhWed, 23 Nov 2016 00:07:57 +0000rVV8IyK6yFwd308n